Philip C. C. Huang - Böcker

The culmination of twenty years of research, this essential book completes distinguished historian Philip C. C. Huang's pathbreaking trilogy on Chinese law and society from late imperial times to the present. Huang shows how, at the level of ideology and theory, traditional Chinese law has been rejected time and again in the past century by China's own lawmakers, first in the late Qing and the republic, then in the revolutionary and Maoist periods of the People's Republic, and finally again in the current reform era. Considering legal theory alone, modern Chinese law can only be Western law, and past Chinese law—traditional or Maoist—can have no role under the leadership's current preoccupations with modernization and marketization.But what has actually happened historically at the level of judicial practice and the daily lives of common people? In exploring this central question, Huang draws on a rich array of court records and field interviews to illustrate the surprising strength of traditional Chinese civil justice. Albeit much altered, its legacy can be traced in informal and semiformal community justice (e.g., societal and cadres mediation), as well as in multiple spheres of court-administered formal civil justice, including property rights, inheritance and old-age maintenance, and debt obligations. He also identifies the influence of Maoist justice, especially its divorce and civil court mediation practices. Finally, despite the reform era's massive importation of Western laws, legal reasoning employed in judicial practice has shown remarkable continuity, with major implications for China's future legal system.

The culmination of twenty years of research, this essential book completes distinguished historian Philip C. C. Huang's pathbreaking trilogy on Chinese law and society from late imperial times to the present. Huang shows how, at the level of ideology and theory, traditional Chinese law has been rejected time and again in the past century by China's own lawmakers, first in the late Qing and the republic, then in the revolutionary and Maoist periods of the People's Republic, and finally again in the current reform era. Considering legal theory alone, modern Chinese law can only be Western law, and past Chinese law—traditional or Maoist—can have no role under the leadership's current preoccupations with modernization and marketization.But what has actually happened historically at the level of judicial practice and the daily lives of common people? In exploring this central question, Huang draws on a rich array of court records and field interviews to illustrate the surprising strength of traditional Chinese civil justice. Albeit much altered, its legacy can be traced in informal and semiformal community justice (e.g., societal and cadres mediation), as well as in multiple spheres of court-administered formal civil justice, including property rights, inheritance and old-age maintenance, and debt obligations. He also identifies the influence of Maoist justice, especially its divorce and civil court mediation practices. Finally, despite the reform era's massive importation of Western laws, legal reasoning employed in judicial practice has shown remarkable continuity, with major implications for China's future legal system.

The author presents a convincing new interpretation of the origins and nature of the agrarian crisis that gripped the North China Plain in the two centuries before the Revolution. His extensive research included eighteenth-century homicide case records, a nineteenth-century country government archive, large quantities of 1930's Japanese ethnographic materials, and his own field studies in 1980.Through a comparison of the histories of small family farms and larger scale managerial farms, the author documents and illustrates the long-term trends of agricultural commercialization, social stratification, and mounting population pressure in the peasant economy. He shows how those changes, in the absence of dynamic economic growth, combined over the course of several centuries to produce a majority, not simply of land-short peasants or of exploited tenants and agricultural laborers, but of poor peasants who required both family farming and agricultural wage income to survive. This interlocking of family farming with wage labor furnished a large supply of cheap labor, which in turn acted as a powerful brake of capital accumulation in the economy. The formation of such a poor peasantry ultimately altered both the nature of village communities and their relations with the elites and the state, creating tensions that led in the end to revolution.

How can we account for the durability of subsistence farming in China despite six centuries of vigorous commercialization from 1350 to 1950 and three decades of collectivization between 1950 to 1980? Why did the Chinese rural economy not undergo the transformation predicted by the classical models of Adam Smith and Karl Marx? In attempting to answer this question, scholars have generally treated commercialization and collectivization as distinct from population increase, the other great rural change of the past six centuries. This book breaks new ground in arguing that in the Yangzi delta, China's most advanced agricultural region, population increase was what drove commercialization and collectivization, even as it was made possible by them. The processes at work, which the author terms involutionary commercialization and involutionary growth, entailed ever-increasing labor input per unit of land, resulting in expanded total output but diminishing marginal returns per workday. In the Ming-Qing period, involution usually meant a switch to more labor-intensive cash crops and low-return household sidelines. In post-revolutionary China, it typically meant greatly intensified crop production. Stagnant or declining returns per workday were absorbed first by the family production unit and then by the collective. The true significance of the 1980's reforms, the author argues, lies in the diversion of labour from farming to rural industries and profitable sidelines and the first increases for centuries in productivity and income per workday. With these changes have come a measure of rural prosperity and the genuine possibility of transformative rural development. By reconstructing Ming-Qing agricultural history and drawing on twentieth-century ethnographic data and his own field investigations, the author brings his large themes down to the level of individual peasant households. Like his acclaimed The Peasant Economy and Social Change in North China (1985), this study is noteworthy for both its empirical richness and its theoretical sweep, but it goes well beyond the earlier work in its inter-regional comparisons and its use of the pre- and post-1949 periods to illuminate each other.

To what extent do newly available case records bear out our conventional assumptions about the Qing legal system? Is it true, for example, that Qing courts rarely handled civil lawsuits—those concerned with disputes over land, debt, marriage, and inheritance—as official Qing representations led us to believe? Is it true that decent people did not use the courts? And is it true that magistrates generally relied more on moral predilections than on codified law in dealing with cases? Based in large part on records of 628 civil dispute cases from three counties from the 1760's to the 1900's, this book reexamines those widely accepted Qing representations in the light of actual practice.The Qing state would have had us believe that civil disputes were so "minor" or "trivial" that they were left largely to local residents themselves to resolve. However, case records show that such disputes actually made up a major part of the caseloads of local courts. The Qing state held that lawsuits were the result of actions of immoral men, but ethnographic information and case records reveal that when community/kin mediation failed, many common peasants resorted to the courts to assert and protect their legitimate claims. The Qing state would have had us believe that local magistrates, when they did deal with civil disputes, did so as mediators rather than judges. Actual records reveal that magistrates almost never engaged in mediation but generally adjudicated according to stipulations in the Qing code.

To what extent do newly available case records bear out our conventional assumptions about the Qing legal system? Is it true, for example, that Qing courts rarely handled civil lawsuits—those concerned with disputes over land, debt, marriage, and inheritance—as official Qing representations led us to believe? Is it true that decent people did not use the courts? And is it true that magistrates generally relied more on moral predilections than on codified law in dealing with cases? Based in large part on records of 628 civil dispute cases from three counties from the 1760's to the 1900's, this book reexamines those widely accepted Qing representations in the light of actual practice.The Qing state would have had us believe that civil disputes were so "minor" or "trivial" that they were left largely to local residents themselves to resolve. However, case records show that such disputes actually made up a major part of the caseloads of local courts. The Qing state held that lawsuits were the result of actions of immoral men, but ethnographic information and case records reveal that when community/kin mediation failed, many common peasants resorted to the courts to assert and protect their legitimate claims. The Qing state would have had us believe that local magistrates, when they did deal with civil disputes, did so as mediators rather than judges. Actual records reveal that magistrates almost never engaged in mediation but generally adjudicated according to stipulations in the Qing code.

This pioneering volume shows that contrary to previous scholarly understanding, the courts in Qing (1644-1911) and Republican (1911-1949) China dealt extensively with civil matters such as land rights, debt, marriage, and inheritance; and, moreover, did so in a consistent and predictable way. Drawing on records of hundreds of cases from local archives in several parts of China, it considers such questions as the relation between codified law and legal practice, the role of legal and paralegal personnel, and the continuity in civil law between Qing and Republican China.

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.