Code, Custom and Legal Practice in China: The Qing and the Republic Compared / Edition 1

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Overview

Drawing on archival records of actual cases, this study provides a new understanding of late imperial and Republican Chinese law. It also casts a new light on Chinese law by emphasizing rural areas and by comparing the old and the new.

The book asks the question: What changes occurred and what remained the same in Chinese civil justice from the Qing to the Republic? Civil justice is here interpreted to mean not only codified law but also actual legal practice. Since the consequences of court actions frequently differed from the code’s intent, this book also addresses the question of how legal practice mediated between code and custom. It aims to track the developing history of the legal system and to discover what it meant in the lives of the Chinese people.

Part One covers the revising of the Qing code and the drafting of new codes, especially the Civil Code of 1929-30, the major institutional changes that preceded the promulgation of new laws, and the organizing principles of those laws. Part Two, the main body of the text, uses case records from both the Qing and the Republic to examine certain topics that engendered frequent litigation: conditional sales of land, topsoil ownership, debt, old-age support, and women’s choices in marriage, divorce, and illicit sex.

The book demonstrates the contrasting logics of Qing and Republican law: of privileges granted by the absolutist ruler versus rights independent of the will of the ruler, of a survival ethic versus a capitalist one, of patrifamilial property versus individual property, of reciprocal parent-child support versus unidirectional support, and of partial and limited choice for women versus independent agency. The book shows, however, that in actual practice the new legal systems made many accommodations to traditional customs, thus making major concessions to social realities while still holding to radically different principles.

The author demonstrates the inadequacies of a simple contrast between the Chinese legal tradition and modernity, or between China and the West. He argues instead for paying attention to the local knowledge of modernization and to the logics not only of the codes but also of customs and court actions. He shows, finally, the importance of both systemic structure and individual choice for this social and cultural study of Chinese law.

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Editorial Reviews

From the Publisher
"Huang's convincing work, at the vanguard of important changes in our vision of Chinese law, deserves wide readership and should be of interest to many types of readers."—Canadian Journal of Law and Society

"[Code, Custom, and Legal Practice in China] will be of substantial interest to historians and legal scholars of modern China."—American Historical Review

Booknews
Drawing on archival records of particular cases, this study compares late imperial and Republican Chinese law, with an emphasis on rural areas. Both codified law and actual legal practices are compared, and the relationship between code and custom is considered. Chapters focus on the issues like topsoil ownership, old-age support, the status of women, and the construction of marriage. Huang teaches history and Chinese studies at the University of California, Los Angeles. Annotation c. Book News, Inc., Portland, OR (booknews.com)
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Product Details

  • ISBN-13: 9780804741118
  • Publisher: Stanford University Press
  • Publication date: 4/28/2002
  • Series: Law, Society, and Culture in China Series
  • Edition description: 1
  • Edition number: 1
  • Pages: 264
  • Product dimensions: 6.00 (w) x 9.00 (h) x 0.80 (d)

Meet the Author

Philip C. C. Huang is Professor of History and founding Director of the Center for Chinese Studies at the University of California, Los Angeles. His most recent book is Civil Justice in China: Representation and Practice in the Qing (Stanford, 1996).

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Table of Contents

1 Introduction 1
1 From Qing to Guomindang Law
2 Civil Law in the Late Qing and the Early Republic: The Revised Qing Code 15
3 Institutional and Procedural Changes in the Late Qing and the Early Republic 31
4 The Guomindang Civil Code of 1929-30 49
2 Qing and Guomindang Civil Justice Compared
5 Dian 71
6 Topsoil Ownership 99
7 Debt 119
8 Old-Age Support 136
9 Women's Choices Under Qing Law: Marriage and Illicit Sex 155
10 Women's Choices Under Guomindang Law: Marriage, Divorce, and Adultery 180
11 Conclusion 201
Appendix 217
References 219
Character List 229
Index 237
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