Civil Law and Jurisprudence in Imperial China
Abstract and Keywords
In terms of jurisdiction and punishment, the border between civil and criminal laws in imperial China is not clear cut. The same officials can handle both civil and criminal cases, and lawfully impose the same punishment, such as the death penalty, on unfilial sons and traitors alike. In terms of the sphere of interests, however, the officials know very well that some violations are more concerned with private interests than public interests. For example, they will settle loan disputes in accordance with the original private contract between the money lenders and borrowers, unless the interest rate is so exorbitant that it necessitates government intervention. Consequently, the imperial Chinese and modern Western civil laws are roughly common in their coverage of marriage, divorce, succession, disinheritance, property matters, and so on. And, like the Western laws, the Chinese laws have experienced historical changes, many of the most important of which occurred during the Song dynasty (960–1279) or the “Tang-Song transformation,” so called to highlight the tremendous progress of China from the medieval to the early modern stages. Against the principle of filial piety, both sons and daughters are now allowed to sue their parents without fear of the death penalty if their accusations are true. Against the principle of communal family, both sons and daughters can possess privately earned properties not to be shared by their parents and siblings. Against the principle of patrilineal succession, unmarried daughters have their inheritance rights increased at the expense of the sons, reaching the ratio of two shares for a son and one share for a daughter. Against the principle of different rights according to different status, a formal concubine can inherit the spousal patrimony and establish an heir when the wife is absent. These changes reflect that the legislative principles, though still far from enshrining equality before the law, are paying increasing attention to the balance of duties and rights with decreasing regard to family relation, gender, or status. As to the judicial practices, they are nearing the rule of law and becoming more predictable instead of inconsistent. These are the less-known or even misunderstood aspects of the civil law in imperial China.
The progress of traditional law had reached a climax in the Tang dynasty (581–918). First promulgated in 653, the Tang Code and Commentaries had been adopted by all succeeding dynasties until the end of the Qing dynasty (1644–1911). However, significant changes did occur regarding children’s rights to sue their parents in civil cases; unmarried daughters’ rights to inherit more family property at the expense of their brothers; and formal concubines’ rights to inherit their husbands’ patrimonies and establish heirs when wives were absent, and to divorce.
Down to the Tang dynasty, a child could only sue his parents under two conditions: first, when the parents committed the gravest crimes, like treason or rebellion against the monarch or the state; and second, when a mother without blood relationship—like a primary mother, stepmother, adoptive mother, or foster mother—killed a child’s father. A child could sue neither his birth mother for killing his father nor his father for killing his birth mother. Violation was labeled “lack of filial piety” and ranked seventh in the statute of the Ten Abominations, the most serious crimes defined by all dynastic codes. Violators were liable to the death penalty whether their accusations were true or false, and even if the accusations were true, the parents were exempted from punishment as if they had voluntarily surrendered and pleaded guilty. However, the right to sue was extended from criminal to civil cases during the Song dynasty (960–1279), and the initiator was the second emperor Taizong (r. 976–997), famous for his expertise in law.
In 977, a stepmother brutally opened the throat of her daughter-in-law. The judicial officials requested that Taizong decide whether she should be punished by life in exile as a family member or by death penalty as a non-family member. Taizong chose the latter and made it a law. In addition, he stipulated that a son could sue a stepmother if she took away his father’s patrimony into her new marriage, now defined as theft. Two considerations underscored the new laws: blood relationship and patrilineal inheritance. When a son was allowed to sue a stepmother for property inheritance, it denoted the following:
1. Regarding the continuation of a family, property inheritance and ancestral inheritance (family line) were hardly separable. Mother was not permitted to compromise the children’s property inheritance.
2. Filial piety to a person’s ancestors was more important than that to a mother, in particular a non-birth mother.
3. Blood relationship was more important than legal relationship, so that a son could sue any mother to whom he was only legally but not consanguineously related.
These principles were challenged by a widowed stepmother who chose to stay chaste, indeed a praiseworthy virtue.
In 988, a wealthy commoner was survived by his second wife née Feng and their daughter, and also by his concubine née Pu and their son, An Chongxu, who was an imperial soldier. By law, Chongxu as the only heir was also the sole owner of his father’s patrimony, over which Feng as stepmother had at most custodial power. However, Feng monopolized the patrimony and expelled Pu and Chongxu. Even though his army salary was high enough to support himself and his birth mother, Chongxu planned to regain his inheritance rights.
Perhaps aware of the fatal consequence of suing a stepmother, Chongxu took a circuitous strategy. Instead of accusing Feng of disinheriting him, he claimed that his father had divorced Feng, so she did not have any right to his property. Finding no evidence of divorce, the local government proposed the death penalty for Chongxu to the central government. Chongxu not only sued but falsely sued his stepmother, which was hardly pardonable by the current law inherited from the Tang.
Taizong summoned a court conference, and opinions were divided. On one side were legal experts from the Ministry of Punishments, the Court of Judicial Review, and their supporters. One of them succinctly argued that, among the complicated and numerous accusations, the only one that really mattered was whether the divorce had taken place. With four pieces of strong evidence, including the confession of concubine Pu that she herself had never heard of any divorce, he reconfirmed that the divorce was a false accusation. He insisted that Chongxu be executed, because “to punish the lack of filial piety is very important to moral teaching.”1
On the opposite side were the chief grand councilor and some forty-two officials. They argued on three major grounds. First, they argued on ritual grounds that the two mothers were equal. Despite concubine Pu’s inferior status, Chongxu as her natural son should wear the same degree of mourning garment for her as he would for stepmother Feng as her legal son. Second, on moral grounds, the two mothers were again equal. Chongxu should be filial to his birth mother too, so it was not totally wrong for him to sue his stepmother for mistreating his birth mother. The guilt of his being unfilial to his stepmother should be mitigated by his being filial to his birth mother. Third, on inheritance grounds, Feng was blameworthy for betraying her husband. To execute Chongxu by law was tantamount to exterminating the An family. Therefore, the officials suggested that the An family property be returned to Chongxu immediately, that Feng and Pu live together, and that Chongxu support Feng forever. They also warned that Feng should not tamper with the An family property and that her natal family should not interfere with the An family affairs.
This might be called a debate between formalism and realism. In Table 1, “Yes” means “a concern,” and “No” means “not a concern.”
Table 1. Courtesy of Nap-yin Lau.
1. Was the accused a mother in legal terms?
Yes, but its importance was relative to 5 and 6 below.
2. Was the accusation false?
Same as above
3. Was making accusation an illegal act?
Same as above
4.1. Was making accusation an immoral act because of lack of filial piety?
Yes, but filial piety to birth mother was equal to that of stepmother.
4.2. Was legal relationship more important than blood relationship?
Birth mother and stepmother were equal in ritual norms, while birth mother had the edge of having blood relationship over stepmother.
5.1. How serious were the mother’s offenses?
Yes, threatening the family line and property
5.2. Was the gravity of the offenses more important than the status of the defendant?
Yes, threatening the family line and property was more important than her being a stepmother.
6 How serious was the son’s punishment?
Yes, endangering the family line
The realists seemed determined to bypass or even to change some old laws. Their argument on ritual grounds ignored the fact that the two mothers were not equal anymore. As his own status changed from that of a concubine’s son to the heir of his deceased father and head of the family, Chongxu should have reduced the mourning period for his birth mother from three years in the coarsest mourning clothes to only three months in the lightest clothes, while still mourning the stepmother for three years in the coarsest clothes.
Their argument on moral grounds also ignored the statute that prohibited children from suing their stepmother on behalf of their birthmother. It stated, “If the primary mother or stepmother kills a concubine who was the person’s birthmother, an accusation to the court is not permitted.”2 Since destitution was definitely less serious than homicide, Chongxu could not sue his stepmother for mistreating his birth mother on the grounds of filial piety. Moreover, the lawsuit was not over the mistreatment of the birth mother but over the divorce of the stepmother, which could hardly be related to filial piety. Is it not absurd to allow a son to perform filial piety to his birth mother by means of severing the marital relation of his father and stepmother? Does not this constitute a lack of filial piety to the father?
In spite of all these issues, the emperor accepted the suggestions of the realists and fined the leaders of the formalists one month’s salary. Why? As disclosed by the verdict that fully restored Chongxu’s inheritance rights, the principal consideration was the continuity of the patrilineal line. Therefore, the wrongdoing of the stepmother was magnified to the extent of making her unworthy of her stepson’s filial piety. She endangered the continuation of her late husband’s family by depriving his only son of both the heirship and the family property. By the moral standards of the traditional patriarchal society, is not this a felony much more serious than a son accusing his mother? Though with self-interest, Chongxu was motivated mainly by the noble desire of saving the An family. Is not this pardonable? Just as the decisions of 977, a son’s rights to inherit the family property and to continue the family line were overriding. In a sense, the Song dynasty was not so different from today in that children may accuse their widowed mother of not giving them their full shares of the patrimony.
By convoking a court discussion, Taizong must have had every intention of making this case a model case. The fervent debate at the highest level of the central government and the final imperial sanction should have made this case a most conspicuous precedent for the entire country to follow. The guidelines it had set down for civil jurisdiction were both authoritative and universal. First, the contents of an accusation were more important than the act of making an accusation, as was the substantive due process over the procedural due process. Second, the contents of an accusation were more important than the legal status of the defendant, so that a son could accuse a non-birth mother who had committed a serious offense against the family. Third, the right of inheritance to a father was more important than the duty of filial piety to a mother. The principle of patrilineal succession eclipsed the law that banned children from accusing the parents to the court. If the accusation was true, the son could regain his inheritance rights and might not be punished for making the accusation, while the mother still might not be punished for committing the offense.
Even Zhu Xi (1130–1200), the most important founder of the School of Principle, who maintained that filial piety was as unchangeable as the principle of heaven, began to accept children’s accusations of their non-natural mothers. Once, he was informed by disciples that some children were not taken care of by their stepmothers and birth fathers. Unable to survive on their own, they appealed to the local court but were turned down on the grounds that the lawsuit “was not appropriate regarding the relations between children and parents.” Zhu said, “That is not right. Cases like this should be dealt with by the law. Also, the stepmother should be summoned to the court to sign a punitive proviso that if she again alienated the children of the former wife from their father, or did not make a living for them, she should be severely punished.”3
Comparing this case in the 12th century to the An Chongxu case in the 10th century, we have to pay attention to four questions which are fundamental to any study of lawsuits between children and parents:
1. Is there any blood relationship between the parties? In this case, it is not clear whether the children were suing the birthfather or the stepmother, but it is clear that Zhu took the stepmother as the principal defendant by assuming that she alienated the children from their birth father.
2. Are the children punished for accusing parents? It seems not in this case.
3. Are the parents punished for their wrongdoing? The birth father was not punished, but the stepmother was reprimanded and would be punished next time.
4. Are the rights of the children protected? According to Zhu Xi, their right to survive should be protected by the judiciary.
Another time in 1182, Zhu received a lawsuit filed by a stepson against his mother. He accused her of having an affair with his late father’s nephew, inviting him to live with her as a continuator-husband, and squandering the family property. At first, Zhu refused to accept the case, also on the grounds of “not being appropriate regarding the relations between children and parents.” After the son followed Zhu’s official trip for tens of miles, Zhu accepted the case and gave it to Yang Jian (1141–1225), an administrator under the military commission. Being a follower of the School of Mind founded by Lu Jiuyuan (1139–1192), an intellectual competitor of Zhu, Yang felt deeply that it was not appropriate to accept a lawsuit filed by a son against his mother. It is quite obvious that such a taboo was felt universally by scholar-officials with no regard to differences in thoughts or schools. Zhu said, “Have you ever thought of his father? After the father died, his wife betrayed him, committed adultery, and squandered his family property. Her guilt has reached such an extent that if the judiciary did not deal with it completely, his father could not but feel unjust in the underworld. Now the judiciary should simply set his son aside.”4 Persuaded, Yang started an investigation. The adulterer jumped to his death in a well, and it is unknown whether the stepmother was punished or not. In this case of son suing stepmother, Zhu solved the problem of filial piety by ignoring the identity of the plaintiff and focusing on the misdeed of the defender. The victim of the adultery is the father, and the victim of the family property being squandered is the family line. Zhu considered both more important than practicing filial piety to a mother.
So far, about fifteen cases of children suing their mother have been found in Song times after 988, eight of which concern inheritance rights; four, illegal sex; and one, homicide. The quantity is small, but most of them are collected in the case book Enlightened Judgments by Famous Masters. Their ratio in a total of about 474 cases is comparatively high compared to cases on different subject matters. In these cases
1. Most of the accused mothers are not birthmothers.
2. Most of the children are not punished for making true accusations.
3. Most of the mothers are not punished either. In the eight inheritance cases, as only one mother is punished, the ratio is 8:1. In the four adultery cases, as one mother is punished, the ratio is 4:1. In the only homicide case, as the mother is punished, the ratio is 1:1. It seems that the mothers may have been treated differently in civil and criminal cases.
4. Most of the misconducts of the mothers are corrected, and thus the rights of the children are protected.
5. Plaintiffs include sons and daughters, reflecting that it is an equal right for male and female.
It is safe to say that these cases, tried by different judges in different times and places across the 320 years of the Song dynasty, these cases show a trend of consistence in civil jurisdiction, especially in largely protecting the rights of the victims, if not completely in punishing the perpetrators.
The changes in the Song were fully adopted into the Ming (1368–1644) and Qing codes. First, a distinction was made between true and false accusations. If the accusation against the parents was false, the children would still be strangled; if true, they would only be given one hundred strokes and three years of penal servitude. Second, a son could sue his birth mother if she killed his father. Actually the second change is a consequence of the first, because a person surely can sue his birth mother if he can sue his birth father. Case studies are badly needed to see how the suing children were punished or not.
Unmarried Daughters’ Rights
The most important law about the division of family property was a statute on household in the Tang Code. It stipulated that after the mourning periods of the parents, the patrimony or common property of the family should be divided among the children in the following way:
All fields, houses, and movable property involved in the family division should be divided equally among older and younger brothers. Property from the wife’s family is not to be part of the division.
If any of the brothers has died, his sons inherit their father’s portion. Commentary: This also applied to a [pre-mortem] adopted son. If all of the brothers have died, the property is divided equally among all of their sons.
Any sons who have not yet obtained wives should receive a separate portion for their betrothal gifts. Any unmarried daughters or aunts should receive portions equal to half the amount of the son’s betrothal gift.
Any widowed wives without sons should inherit their husband’s portion. If all of the husband’s brothers have died, the widow should inherit the same portion as one of the sons.
Commentary: If the widow has a son, she does not get a separate portion, assuming she stays in her husband’s home as a chaste widow. If she remarries, she may not dispose of the retainers, slaves, fields, and houses, but [must leave them] to be divided equally among the remaining coparceners.5
This terse yet comprehensive statute was fully adopted into the Song Code. Unfortunately, it has been very often misunderstood by modern scholars, who fail to distinguish inheritance by oneself from inheritance by subrogation.
Despite the presence of many people in the statute, there are only two kinds of coparceners or coheirs: sons and unmarried daughters.
1. Share for the daughters:
1.1. Married daughters are not included in the statute because they have already received dowries as their shares of the family property.
1.2. An unmarried daughter should receive a portion half the value of her brother’s betrothal gift. In principle, an unmarried aunt, being the daughter of her deceased father, should receive a portion half the value of an uncle’s gift, not of her nephew’s.
2. Share for the sons:
At the division, the sons appear in four situations in the following order:
1. All sons are alive.
2. Some sons are alive, and some are dead.
3. All sons are dead.
4. Some sons are married, and some are not.
All related sentences in the statute can find a neat place under each situation:
2.1. All sons are alive. They themselves receive equal shares from the common property.
2.2. Some sons are alive, and some are dead. Supposing that there is one son who is alive and one son who is dead, the living son receives his share by himself. For his dead brother, there are three possibilities:
a. If he has sons, then his sons participate in the division with their uncles, and together as one person receive a share equal to that due to their deceased father. It is actually inheritance by subrogation. Supposing there are four sons with their four branch families, each will inherit 25 percent from the common property of the trunk family, and then this 25 percent becomes the common property of each branch family to be divided and inherited by the children. Therefore, for a branch family with a deceased father, there are two consecutive inheritances: the deceased father represented by his sons first inherits his father’s patrimony, which immediately became his patrimony, and then his children inherit his patrimony.
b. If he has no son, then his widowed wife staying chaste in his branch family participates in the division with his brothers and receives a share equal to that due to him. It is again an inheritance by subrogation. Supposing there are four branch families, the widow will receive 25 percent from the common property of the trunk family, and then this 25 percent becomes her husband’s patrimony to be inherited by an heir established by her or other relatives in the future.
c. If he has neither son nor wife, or his wife does not want to stay chaste, his share should have been divided equally by other coheirs, or inherited by an heir established by his brothers or other relatives for him.
2.3. All sons are dead.
a. If they have sons, their sons should equally divide the patrimony of their grandfather. Supposing there were twenty-five grandsons in the four branch families, each will receive 4 percent from the common property.
b. If any of the dead sons has no son, his widowed wife will participate in the division and receive one share equal to that of a grandson. Supposing there are twenty-four grandsons in three of the four branch families, the wife of the other branch family will receive 4 percent from the common property and finally should pass it to an heir in the future. It is also an inheritance by subrogation, in which a mother inherits on behalf of her son.
2.4. Some sons are married, and some are not. An unmarried son should receive two portions from the common property. One is his inheritance share that should be equal in value to his married brother’s. The other is for his betrothal gift, which should also be equal to his married brother’s betrothal gift.
After appreciating the self-sufficiency of this statute, two questions arise. One can be answered by following the logical legal reasoning of the legislators, and the other should be answered in the same vein by case studies. The first question is whether a widowed wife had inheritance rights to the common property of her deceased husband’s family. While her rights were all mentioned in 2.2.b and 2.3.b, at issue is why the two portions received by the same wife were not the same in value? The difference was as big as that between 25 and 4 percent. Why?
The reason is that she did not receive the portions for herself, but one (25 percent) for her husband as the son of the deceased, and the other (4 percent) for her son as the grandson of the deceased. She herself as the daughter-in-law of the deceased received nothing from his patrimony. All inheritances involving her in the statute were all inheritance by subrogation. When a real successor was available, she would receive nothing, as the commentary had said clearly that “if the widow has a son, she does not get a separate portion.” In a word, a wife had no right to inherit anything from the common property. She could live on that 25 or 4 percent if necessary, but it did not mean she owned it or inherited it from her husband in the grave or her son in the future. The phrase “a wife inherits her husband’s share,” which has often been quoted to assert that a widow inherits her deceased husband’s patrimony, was actually a condensed expression that a wife inherited by subrogation her deceased husband’s share from his father’s patrimony. A wife could receive gifts from her living husband, but his patrimony should all be inherited by his children, even if all of them were children by a concubine. When receiving the 4 percent, a sonless mother should bear in mind that it was for her to adopt a son who would be the real inheritor of this 4 percent.
The second question is why a son received a much larger portion than a daughter. It may have been for two major reasons: first, a son needed to continue the ancestral line and add glory to it by establishing his own family or career, and second, he had made a larger contribution to the common property than a daughter. While the first reason was not challengeable, the second was not always true, particularly in southern China. As one scholar has aptly pointed out, women in the south had been playing an equal if not more important role than men in family finance.6 After the Song dynasty moved to the south, was it possible for a daughter to have her portion increased? If yes, by how much? For a single or unmarried daughter, it was a big increase from only half the value of her brother’s betrothal gift (hereafter cited as the half-gift rule) to half the value of his inherited property (the half-share rule). It was indeed a reduction of the brother’s share in order to increase the sister’s, a real challenge to the principle of patrilineality, and it took about 250 years to accomplish.
The earliest case occurred in 999 in the south. A rich man died and by testament left about one-third of his patrimony to his three-year-old son and two-thirds to his daughter and her uxorilocal husband. The son grew up and sued to rectify the proportion that was obviously against the half-gift rule. The prefect annulled the testament and granted two-thirds to the son and one-third to the daughter, thus formulating the half-share rule for the first time, perhaps a resort to local customs.7 Anyway, it remained a precedent or judge law, as no further legislation was known.
In 1127, the Song moved to the south after losing the north to the Chin (1115–1234), and applications of the half-share rule increased. Around 1222–1223, a very rich man died and left behind three thousand mu (one mu equals about 733 square yards) of land and ten storehouses or pawnshops. He willed that each of his two natural unmarried daughters would receive 130 mu and one storehouse, and his unmarried adopted son got the rest. The son sued, arguing that the two daughters were getting too much, and he won the support of the vice magistrate. But a regional official upheld the will, saying that “if applying the precedent for equal division established in another prefecture, the two daughters [on the one hand] and the adopted son [on the other hand] should each receive half the property,”8 meaning that the son could receive only 50 percent and each daughter 25 percent, the latter much more than the testament had assigned. It is clear that the half-share rule was still a local law not necessarily applicable to other places.
Twenty years later, around 1244, another regional official applied the half-share rule, this time no longer as “precedent” but as “law.” He said, “According to the law, when the father and mother have died, the sons and daughters divide the property, and a daughter receives half as much as a son.” He also called this law a “statute currently in effect.”9 The same divisions were also found in two other judgments, one made by a low-ranking official on the district level, and the other by a high-ranking official on the regional level, reflecting an extensive recognition of the half-share rule.
From the above cases, it is clear that the half-share division was implemented according to the law and not because of a personal determination by certain judges. It developed from a local precedent into state law, best applicable to family division which had no example of paying either a formal dowry or a formal betrothal gift on which a formal dowry could be worked out as required by the half-gift rule. It did not differentiate between adopted or natural children, half siblings or otherwise, adult or child, or rich or poor. It was indeed a big increase of a daughter’s share at the expense of a son’s, causing a surprise to historians who maintained the superiority of sons in the traditional patrilineal society.
However, the half-share rule is not found in the state codes of the Ming or Qing dynasties, in which even the household statute on the division of family property of the Tang and Song is missing. But it is simply impossible that in Ming and Qing times a son could not inherit his father’s share by subrogation, the grandsons could not divide the common property per stirpes, or an unmarried daughter could not receive a dowry from her father’s patrimony. It is obvious that we cannot directly deduce from the absence of the Song changes in the Ming and Qing codes that these changes were not continued. We need more case studies to understand what happened in the Ming and Qing.
Curiously, the half-share rule is unequivocally recorded in a Qing account of the custom of Islamic marriage in China. It says that one or two days before the wedding, the family of the bride will send servants to the family of the bridegroom to decorate the nuptial chamber. The value of the dowry is estimated “according to the rule on family division. A daughter should receive half as much as a son.” Perhaps to avoid ambiguity, it further notes that “for example, if a family has one son and one daughter, one third of the family property should be set aside [for the dowry]; if there are one son and two daughters, one fourth should be set aside; if there are two sons and one daughter, one fifth should be set aside; if there is only one daughter, half of the family property should be set aside.”10 The custom of decorating the nuptial chamber can also be found during the Song dynasty, but it is not known whether the half-share ratio was an Islamic influnce on the Song, the other way around, two independent customs, or of the same origin.
Concubines’ Legal Rights
Some scholars have mixed up formal with informal concubines, thus misunderstanding their rights. In contrast to a wife’s being called “the right chamber,” a formal concubine was called “the side chamber,” which properly reflected her secondary status in the family. She was first married to her master-husband through a marital contract designed for concubines and then formally registered under his household registry. The marital contract legally guaranteed that her marriage last until divorce, that during her marriage she not be sold or remarried to another man, and that she not be relegated to the status of a servant. According to the family rites designed by Zhu Xi and accepted by the government in the mid-12th century, a formal concubine was considered a family member entitled to attend ancestral worship, weddings, and capping ceremonies—in appropriate garments. The state law also required that she be single when signing the marital contract, that her surname be different from her master-husband’s, and that she observe for him (in case of his death) the longest mourning period of three years in the most solemn mourning clothes. A concubine and her husband were mutually liable for each other’s serious crimes, so that she should follow him into exile unless divorced, or he might be punished for her lack of filial piety to his parents. Of course there were numerous contractual violations; a concubine was sometimes treated like a servant, beaten, sold, or remarried to another man. Needless to say, similar maltreatments also happened to wives, sons, and daughters, and this alerts modern-day scholars not to mix up illegal with legal or to use illegal treatments to define the legal rights of concubines or wives. In the same vein, a concubine might have been treated like a wife, but this again should not be understood as her legal right. The “fate” of a concubine did not define her “rights,” nor does the “exceptional” or “illegal” help clarify the “normal” and “legal” situations.
An informal concubine was also called a maid-concubine, maid or female servant, or even slave-maid. She was actually a servant hired to her master through a job contract, which set a time limit to her tenure, during which she could be fired or rehired to another man. She could have been married when signing the job contract, and therefore still registered under her husband’s household registry. Her surname could be the same as her master’s, and she need not mourn for him. Generally master and concubine were not punishable for each other’s crimes. A maid, especially one with a son, could be promoted to a formal concubine by changing her job contract into a marital contract. Even though neither a maid nor a formal concubine could be made a wife, she could be treated like a wife, but again this should not be taken as her legal right. A maid might suffer as many abuses as a concubine or a wife, and this should not be understood as a normal relation between her and her master, or that a maid was similar to a concubine or a wife in family status because of this same ill fate. “What is” should never be mixed up with “what ought to be” in legal history.
As a family member and spouse, did a formal concubine possess the rights to inherit her master-husband’s patrimony and to posthumously establish an heir for him? Since the wife was the first to execute these rights, the answer can be found only in legal cases in which the wife was absent.
Inheriting Spousal Patrimony
Common sense or humanitarianism suggests that a widowed concubine should be provided with a living pension, but it does not follow that she should get it from spousal patrimony. Instead, her living expenses might come from the mercy of the widowed wife and her children, as well as from her own children’s legal duty of filial piety. In fact, a Tang-Song statute clearly stated that “neither maid-concubines nor concubines should share the family property.”11 However, all this was changed in the mid-13th century.
In the early 12th century, Chen Sheng and his concubine A-Ho had one boy and one girl, and he “treated her ritually like a wife,” but his heir, perhaps a son with his deceased wife, was at odds with A-Ho. Soon after Chen Sheng’s death, A-Ho moved out with her children and sued the heir for “lacking in filial piety.” The judge made four decisions:
1. In compliance with what the sages had said in the Annals of the Spring and Autumn Period and the Book of Rites that a son should respect and follow his father’s way of treating his concubine, the heir should ritually respect and treat A-Ho like his mother.
2. A-Ho should come home to finish mourning her husband.
3. After the mourning period, A-Ho was free to remarry, but could not take her children to her new marriage.
4. If A-Ho chose to stay chaste in the Chen family, she still could not interfere with the heir in the management of family affairs.12
It is quite clear that, as a mother by law, a concubine had the legal right to sue any of the children, including the principal heir who had become family head. The judge was highly sympathetic with the concubine to the extent of citing two Confucian classics to do her justice, but at the same time he did not grant her any share or custody of the patrimony even if she chose to stay chaste in the family. A concubine still counted on her own children’s inheritance shares for survival. This was going to be changed by a loving husband and an understanding official that a concubine could directly receive inheritance share from her husband.
A commoner willed that his two sons share his patrimony equally with his concubine. Obviously not natural sons of the concubine, the two sons were reluctant, appealing to the court that there was no law allowing a concubine to share the family property. The magistrate ruled that the sons obey their father, and the concubine have usufruct (use-right) over the share when staying chaste, and return it to the sons when getting remarried or passing away.
The breakthrough in this case is conspicuous. Prior to it, a concubine who stayed chaste could legally obtain nothing from spousal patrimony, and her living expenses came from the inheritance shares of her natural children or other children of her husband. After it, a childless concubine who stayed chaste could legally receive living pension directly from spousal patrimony, so that she did not need to rely on the inheritance shares of her husband’s children.
Two issues remain to be solved: First, could a concubine who had natural children share the family property like a childless concubine? Second, had this single judgment in judiciary, or so-called judge law or case law in modern legal history, become statutory law, which was considered to be less personal and more stable, predictable, universal, and authoritative in traditional China?
In the late 13th century, Fang Wenliang passed away, and his eldest son Yande accused the nephew Zhongyi of squandering the family property (see Table 2).
Table 2. Courtesy of Nap-yin Lau.
The judge declared:
[The family properties] should be divided according to the division law of 1247, which was proclaimed by the imperial legislative bureau . . . Land should be allotted to [the concubine] née Li as her living pension, what is left of the land and other properties should be divided into three equal shares [among Yande; Zhongyi, who acquires his father Yancheng’s share by subrogation; and Yunlao], and each of the share holders should establish an independent household registry [so as to register the share as private property].13
It is clear that a concubine could receive her own share directly from the patrimony. If it was immovable property, she could only use the income, like rents from tenants, and should leave the property to her husband’s family at her remarriage or death. Usually the title deeds were kept by the government in order to prevent her from selling or pawning. It is also clear that her natural children received their shares directly from the patrimony, which should be equal in amount to the share of the family heir who was not their natural brother. The concubine’s share and her children’s shares were separate, which enabled her to live independently even from her own children, challenging the ritual norm that a widow should follow her children in her widowhood. This pattern of patrimony division had become statutory law in 1247, meaning it was to be observed throughout the empire. If denied her share, a concubine could now resort to a written law rather than the personal predilection of a judge for justice. A concubine’s private personal “interest” in survival had now become her public legal “right.”
A question naturally arises that if a concubine’s inheritance share should finally go to the successor of the family at her death, could she have the right to select a successor to her heirless husband?
The Right to Establish a Posthumous Heir
In a case that occurred between the late 1260s and early 1270s, a judge not only gave a concubine the right to establish an heir but also analogically equated it to that of a wife. The particularity of the case notwithstanding, this decision shows that there were many possibilities for a concubine to acquire new rights.
Mr. He and his concubine née Yang had one son and one daughter. The son, Kanggong, was adopted by another family at the age of three. Twenty-seven years later, Mr. He died heirless, leaving Yang and their daughter to a long dispute between three parties over the appointment of an heir. Finally, there were two candidates: Kanggong supported by Yang versus kinsman He Douhuan supported by the He lineage. Meanwhile, Yang and her daughter had transferred half of Mr. He’s patrimony to Kanggong. Yang, aging in widowhood, was determined to establish Kanggong as son.
The officials negotiated with Yang that if she chose Douhuan over Kanggong, she could still “analogically” appeal to the law that gave a wife the prerogative to decide the heir after her husband had died. According to the law, a concubine was not legally in the hierarchy of heir appointers, so Kanggong could only be established by the He kinsmen who were in the hierarchy. The officials were offering Yang two choices: Douhuan could be established in her name and could inherit the entire patrimony; or Kanggong could be established by the He kinsmen and could inherit only one-third of the patrimony, which Yang might find hard to accept since she and her daughter had already given half of the patrimony to Kanggong. The officials not only tempted Yang by according her the right of a wife but also made a big concession in allowing Kanggong to acquire half the patrimony as compensation for his abandoning the heirship. On this compromise, the judge commented: “Judging from the principle of heaven, it is absolutely intolerable; but in consideration of the principle of human compassions and reasoning, what the judicial officials had suggested is thorough. Go ahead accordingly.”14 Here the human compassions referred to the maternal love originating from the blood relationship between Yang and Kanggong, which accounted for Yang’s “intolerable” conduct in favor of Kanggong. The reasoning referred to the justification for giving half of the patrimony to Kanggong as a way to compensate for his loss of inheritance right to his real family.
In some circumstances, human compassion and reasoning might take precedence even over the principle of heaven to grant conditionally the right of a wife to a concubine. After all, it is the concubine who was going to take more care of the adopted heir and live closer to him than the kinsmen who might lead a separate life from her and the heir.
The changes in the Song were continued by the Yuan (1271–1368). In 1286, an official Mr. Zhang died, leaving 1575 mu of landed property to his adopted son Yuanping, his concubine A-Chu, and their son Anlao. In compliance with his testament, A-Chu and Anlao got 793 mu, and Yuanping 782 mu. After three years, A-Chu appealed that Anlao had died and Yuanping was disobedient, so she wanted to establish an adult kin as Anlao’s son to continue the household of her husband. Her request was granted.
It is really amazing to see that a concubine could accuse her husband’s adopted son of lacking filial piety and deprive him of the opportunity to inherit her husband’s household, then choose an heir on her own, and finally have him continue the family line. It has been pointed out that a wife in the Ming had lost the right of priority in heir appointment once enjoyed by a wife in the Song. If that is true, a Ming concubine should have lost hers too. But a great deal of investigation remains to be done on that point.
The Right to Divorce
There was a small change in words but a big change in significance from the Tang to the Song laws with regard to the rights of the wives and concubines to divorce when their husbands were sentenced to the connective punishment of life exile. Table 3 shows the comparison.15
Table 3. Courtesy of Nap-yin Lau.
Table 4 indicates that the significance of the difference was that in a particular situation the right to decide on divorce had shifted from the government to the couples.
Table 4. Courtesy of Nap-yin Lau.
Wife and concubine subjected to following their husband into life exile
Who had the right to decide on divorce?
Was divorce allowed?
Wife and Concubine
1. Willing to have his wife and concubine follow him
Willing to follow the husband
Husband, wife, and concubine
2. Not willing
Husband, wife, and concubine
Divorce not allowed
Husband, wife, and concubine
Divorce not allowed
No divorce or divorce allowed
4. Not willing
Husband, wife, and concubine
Divorce not allowed
No divorce or divorce allowed
The difference raises several questions.
1. Concerning the legal rights of wife and concubine:
1.1 In the situation of life exile, a formal concubine had the same right as a wife. To what other situations was this kind of equality applicable?
1.2 Why was this equality was applicable to some but not to all situations?
2. Concerning the Tang-Song legal transformation:
2.1 Why were the Song lawmakers were more humane than their Tang peers?
2.2 Life exile fell under the public sphere, while divorce was under the private sphere. The Tang law connected them, subjecting marriage to punishment. The Song law separated them, freeing marriage from punishment. This was an important change to the traditional legal idea of “connective punishment,” in which an innocent son was jointly punished with his criminal father, a wife with her husband, a bond-servant with his master, and so on. What brought about this change to the legal thought of the Song?
3. Concerning the relations between law and rite:
3.1 The change challenged the rite of “three follows” that a female should observe: following her father before marriage, following her husband during marriage, and following her son in widowhood. Unlike the Tang, the Song allowed wives and concubines not to follow their husbands into life exile.
3.2 This violation of rite challenges the traditional idea of “unity of law and rite” or “the absorption of rite by law,” still maintained by numerous modern legal scholars. Sometimes law not only did not absorb but also violated rite.
With all these new rights, a concubine was almost like a wife in function. It is simply misleading to think of a formal concubine as a mistress, entertainer, courtesan, or sex object. For many husbands in the Song, in particular the widowers of middle-class families with only limited resources, marrying a concubine was preferred to a second wife for the sake of having more choices and spending less on the wedding. Despite the differences in legal and ritual status, this concubine was expected to contribute to the family as much as a wife, and could be respected similarly. Logically, if a concubine is expected to function as a second wife, she ought to have some rights similar to those of a wife.
Concluding Remarks: Causes or consequences of the legal changes
Changes to the Composition of the Ruling Class
Down to the Tang dynasty, the majority of the ruling elite were scions of noble families and big clans, who had almost hereditarily occupied the most important government posts. Thanks to the uprooting turmoil during the Five Dynasties (907–960) and the adoption of the civil service examination by the Song, these elites were first replaced by military men and finally by scholar-officials mostly coming from middle-class families. Emperor Taizong actually came from a middle-class military family. The two heroes in the Song versus the Tangut Xia (1032–1227) warfare were born to women of low status: Fan Zhongyan (989–1052) was the son of a remarried widow unwelcomed by his deceased father’s kinsmen, and Han Qi (1008–1075) was the son of a concubine. Also, Shi Miyuan (1164–1233), a most powerful grand councilor governing over twenty-five years, was the son of a concubine. As a result of social mobility, the new ruling elite carried the interests of the less privileged, like the widows, concubines, farmers, laborers, merchants, and soldiers. As social mobility triggered cultural interchanges, some values of the ruled class, such as a daughter’s right to inherit a relatively large share of the family property, were gradually assimilated to those of the ruling class. Many of these scholar-officials were open to changes. Han Qi had once remarked that the rites did not fall down from the heaven or come up from the earth but originated from human compassion only. It is no wonder that they would have legislated and adjudicated in favor of concubines in disregard of ritual norms. In short, by virtue of the civil exams that had caused both social mobility and cultural infiltration, many new laws of the Song may be called “laws of the middle class,” which persisted through the Ming and Qing until the victory of the proletariat class in 1949.
Political and Economic Developments
After the Tang, China was divided into the north and the south for fifty-four years, and the relatively peaceful south enjoyed far better economic growth than the warring north. The unified Song began “the north conquering and ruling the south,” in which the rather traditional northern interests and values dominated politically, if not economically or socially. In about one hundred years (960–1063), due to great success in the civil exams, the southerners gradually got even with the northerners from the low to the high positions in the central government. In the north-south co-governance, the interests and values of the south sometimes won, especially in economic developments that could hardly be reversed. The traditional communal family system of “one common property under one household registry” required that every patrilineal member pool their incomes into a single family property and consume equally until the family could be divided by the death of the parents. Its major shortcomings were its inducement to dependence of the lazy on the hard workers, shortage of incentives, and easy dissipation of family wealth by all members, definitely disadvantageous to economic development. During the north-south division, this was largely changed in the south, where most kingdoms gradually permitted pre-mortem division (division inter vivos) to allow accumulation of personal wealth inaccessible to lazy siblings. However, the early Song rulers reversed it and punished the violators with death penalty. In 1023, a thirteen-year-old boy, by coincidence a north-south hybrid, became emperor. His birthmother, a humble palace maid, and his legal mother, the powerful empress dowager and de facto ruler, had been both southerner and commoner, reflecting the rise of the southerners and their merge with the northerners. An epochal change happened in 1037, by which children were allowed to keep two kinds of incomes as private property not to be shared with their family members: the old one as in the Tang was their official salary, and the new one was individual earnings not derived from the original common property or, in modern terms, fortunes made by personal efforts. One underlying principle of the change was “more pain more gain” or “no pain no gain,” pegging a person’s rights to his labor. As private property in a communal family finally got legal recognition and protection, capital accretion and investment were easier and freer than before, unquestionably contributing to the kind of capitalism developing from the Song to the Qing.
Changes to Legal Thought
Here is a biggest question to ponder: What are the factors that jointly determined a person’s rights, or what factors reduce a person’s legal privileges due to birth (nobility), gender, profession (official), blood relationship, family and social status, class, and so on?
Rights Commensurate with Contributions and Duties
The increase of an unmarried daughter’s inheritance from half-gift to half-share of her brother’s does seem too much if it is only to increase the dowry, so it might also be intended to repay her contributions to family finances, which might include the education and civil service examination expenses of her brothers, from which not a few scholar-officials might have benefited. The daughter’s gain is her brother’s loss, which might be seen as a reward for her working hard to allow the brother to study hard. If so, why should she get only half instead of the full share? One obvious answer is that her brother had one very important duty that she could not perform: to continue the family line. This also explains why a monk could not inherit family property. The half-share ratio can be understood as a balance between contribution and duty, which jointly, not singularly, determine her right. Therefore, if their duties were the same, could a daughter enjoy the same rights as a son, such as the right to have private property in a communal family?
Working as a maid-concubine in a rich family, Lai An became the most important financial source of her own family. She was rewarded with some land for bearing a son to her master, and even though the son did not grow up, the master did not take back the land. Due to the jealousy of the childless wife, Lai An was retired. The master passed away, and the wife immediately tried to get back the land. The judge refuted the wife, and in compliance with the law that banned children from establishing separate households when their parents were alive, ruled that on the one hand Lai An’s properties should be registered under her father’s name, while on the other hand they should be carried by Lai An to her marriage in the future. This was undoubtedly a fulfillment of the 1037 law that granted children full legal rights to properties earned on their own, which could not be appropriated even by their parents. This right was granted to both males and females.
However, in the management of private property, Lai An had to bear two things in mind. One was the traditional ethics or social customs that required a child to be dutiful to the family. The other was the law on filial piety that punished a child with two years of penal servitude if he or she was lacking in the support of the parents. It seems to suggest that by protecting her private property on the one hand, while requiring her to support her parents with it on the other hand, the law took care of both her rights and duties. Here the law stopped, leaving Lai An to decide according to social customs how to support her parents and family. In this sense, the government maintained the family system by law but left the family harmony to the work of social ethics or customs. Law and social traditions are always working hand in hand.
Also noteworthy in this lawsuit of low-class people versus high-class people is that the judge did not discriminate against Lai An because of her low social status. Instead, he took pains to search into and check the land transaction and public service records over a period as long as six years. Justice is more important to him than social class or the master-servant relation. To some extent his decision realized the ideal that all are equal before the law or entitled to the equal protection of law.
Although there was only a small number of maids who were as lucky or capable as Lai An, their salaries were now all their private property under the protection of law. As there were tens of thousands of servants, it is easy to imagine the widespread influence of ideas like private property, personal rights, or even individualism across the country from the Song to the Qing.
Legal Privileges Compromised by the Gravity of Misdeed
According to the dynastic code, most of the Song mothers enjoyed two legal privileges: exemption from accusation by their children of all civil offenses and most criminal crimes, and exemption from punishment by the government even if the accusation was true. This is typical of the laws aimed at the maintenance of a hierarchical society, in which a person’s legal rights are largely determined by his status in the family, society, and state.
Then came the change. Before it, a mother who had infringed upon her son’s inheritance rights was well protected by her legal relationship as a mother to the son, no matter whether she was a natural mother or not. After the change, she was protected only by her blood relationship to the son so that a non-natural mother might be subjected to both accusations by the son and punishments by the government. Finally by the Ming and Qing codes, only the truth of the accusations was counted so that the mother might be punished for her infringement, and the son should be pardoned for accusing his natural or non-natural mother if the accusation were true. This move was a victory of pragmatism over formalism.
Since no law can cover all possibilities in a human society, there will be exceptional adjudications, but they do not reflect the majority position. However, it should be noted that in protecting the victim’s interests or rights, the civil judgments were also mostly grounded on law, but in punishing the perpetrators, they were always affected by factors like blood relationship, gender, or class—sometimes making dissimilar decisions in similar cases. Further studies ought to distinguish protection of rights and punishment of offenses in the implementation of law.
Changes to the Importance of Morality or Ritual Norms
It is misleading to think of traditional law as always a union of the law and the rite. Logically there are at least four combinations of the two: (a) some ritual norms are absorbed into the law, such as the mourning grades and garments; (b) some ritual norms are not absorbed into the law, such as the requirements that a wife should give up her dowry to her husband and refuse remarriage; (c) some ritual norms are banned by the law, such as the demand that a son should kill the murderer of his parents; and (d) some ritual norms are violated by the law, as when the cross-surname adoption of a son is banned by the rite but allowed by the law. Some ritual norms inside the law may have fallen out while those outside may have entered, and those once banned before may have come to be allowed by the law now.
During the transition from the aristocratic Tang to the middle-class Song, even the definition of the lack of filial piety was alterable, relativized, and even decriminalized. The change not only tested how far the legal and ritual norms could diverge but also challenged the priority of such factors as position, status, age, gender, and class in making a legal judgment. By the statute of the Ten Abominations, the crime of lack of filial piety was not only itemized but also clearly ranked (see Table 5).16
Table 5. Courtesy of Nap-yin Lau.
Accusing one’s paternal parents
Cursing the above persons
Life exile for 2000 li
Concealing or falsifying the death of the above persons
Life exile for 2000 li
Having separate household registry or property from the above persons
Penal servitude for three years
Marrying during the mourning periods of the above persons
Penal servitude for three years
Being deficient in support of the above persons
Penal servitude for two years
After the court debate in 988, suing one’s legal mother might still be considered a lack of filial piety, but it was also accepted that there are other considerations just as important as filial piety, such as patrilineal succession. Therefore, suing one’s legal mother was only relatively but not absolutely wrong. Many of the accusing sons were given punishments much lighter than strangulation, or they were simply not punished—close to so-called decriminalization of the 21st century, meaning the change of a criminal to a civil offense. Consequently, the ranking of the offenses was compromised, and the punishments for them became negotiable. An offense once ranked first in terms of gravity in punishment might now drop to rank zero with no punishment.
Before 1037, a mother could by law demand that her children pool their personal incomes with the family property, over which she had custodial rights when her husband passes away. After 1037, if her children refused to do so, she could not accuse them of lack of filial piety. Moreover, if her stepchildren requested a pre-mortem family division, she would have to agree and lose custodial right over their shares. Again, she could not accuse them of lack of filial piety as she could with respect to her natural children. This was also a decriminalization.
From this historical point onward, there were more and more competing considerations appealing to the judge in lawsuits between mother and children. If a son was allowed by the emperor to accuse his stepmother on behalf of his natural concubine-mother, did that mean that blood relationship can supersede both legal and ritual norms? Should the son’s filial duties should go to his natural mother first? Should an illegitimate son who is not yet registered in the household obtain inheritance rights? Should his blood relationship to his deceased father override the Tang-Song legal requirement that only a registered son be accepted as a legitimate successor? How about an adopted son? Should his blood relationship to his natural parents take precedence over his lawful duties to his adoptive parents? This chain of questions and answers awaits further investigation.
Discussion of the Literature
Generally there are three main approaches: macro, micro, and the combination of two. The major strength or attraction of the macro approach is its endeavor at generalization and even theorization, looking for universal principles, values, and explanations. A classic example is Ch’ü T’ung-tsu’s Law and Society in Traditional China (Paris: Mouton, 1965). It deals with family and Tsu (roughly, “lineage”), marriage, social classes, religion and law, and the Confucian School and the Legal School. The most original is the discussion of black magic, and the most remembered is the grand theory of “Confucianization of law.” Trying to be long in time and broad in space, macro historiographies tend to rely on the twenty-five dynastic histories, the official Veritable records, administrative works, and dynastic codes as their principal sources. There are three major criticisms against this approach:
1. Most of the legal histories thus produced are heavily legislative rather than judicial, even to the extent of being “laws on paper” or purely institutional.
2. As the majority of researchers are not historians, they can hardly relate the legal changes to other changes like political, economic, social, and cultural. The legal changes are found, but the causes of the changes are not.
3. The findings are usually too general to be specifically applicable. For example, the theory of Confucianization of law is challenged by Geoffrey MacCormack’s “A reassessment of the ‘Confucianization of the law’ from the Han to the T’ang” that the definition of Confucianism is too loose to the extent of containing non-Confucian elements (Liu Liyan ed., Zhongguo chuantong falüwenhua zhi xingcheng yu zhuanbian. Taibei: Zhongyangyanjiuyuan and Lianjingchubanshiyegongsi, 2008, 397–442).
The micro approach is well exemplified by Bettine Birge’s Woman, Property, and Confucian Reaction in Sung and Yuan China (960–1368). She successfully argued that the pursuit of widow chastity from the late Song to the Yuan was not caused by the assumed single factor of Zhu Xi’s Neo-Confucianism but by a combined force of Neo-Confucianism, the Mongal custom of levirate, and the increases of women’s property rights. Her book is pioneering in two respects. First, in terms of interdisciplinary study, it excels in combining intellectual history, social history, and legal history. Second, in terms of methodology, it is a model of micro study:
1. It is specific in topic, target, time, and place. For example, in discussing the transformation of marriage and property law in the Yuan, it divides the time into five stages: 1260–1271, 1271–1276, 1276–1294, 1294–1320, and the late Yuan.
2. It is exhaustive in locating and utilizing almost all extant legal cases, which is of course a merit of specification.
3. It is meticulous in definition or classification. For example, women and property as its two major targets are carefully differentiated into daughters without surviving brothers, daughters in cut-off households, daughters and posthumous heirs, and so on; and property from dowry, property within marriage, property in divorce, property in remarriage, property by testament, etc.
4. It is highly attentive to the specific or even unique events in its chosen time and place, such as the rise of Neo-Confucianism, foreign rule, and foreign customs.
However, its specification is also its limitation. Its explanations, even though persuasive for the Song and Yuan situations, may not be sufficiently applicable to other dynasties which also pursued women’s chastity but without the increase in women’s property rights, foreign rule, or foreign customs. Is it possible to draw macro explanations from micro studies?
The combination of micro and macro approaches can be seen in the works of Brian McKnight and Liu Liyan (Lau Nap-yin), both starting from case or topical studies before arriving at comprehensive generalization. McKnight started from the study of forensic knowledge, amnesties, crimes and criminals, informal and semiformal agencies of law enforcement, the role of the military in law enforcement, supervision of law enforcement, urban crime and security, jails and jailers, penal systems, the death penalty, modifications of penalties, and more. Drawing from these small to medium works, he finally produced “some thoughts on law and morality in Sung justice,” pinpointing seven factors that might jointly affect jurisdiction: Confucian morality, general legal principles and guidelines, practical administrative issues, governmental policies, local sentiments, fundamental and widely shared social values, and—last but not least—the laws themselves (Liu Liyan ed., Chuantong Zhongguo falü de linian yu shijian [Taibei: Zhongyangyanjiuyuan lishiyuyanyanjiusuo, 2008], 413–464). Thanks to its solid and comprehensive generalization, which can be applied to other dynasties, it was immediately translated into Chinese (Fazhishi yanjiu 6, 2004, 225–258) and might have become his most influential work. Likewise, Liu Liyan started from the study of the Song family system, the development strategies of both civil and military official families, the legal power and authorities of the family heads, the females and aging parents in the family, the common and private properties in the family, the monks and the witches as criminals, jurisdiction on supernatural cases, administrative handbooks, the most important Song case book Minggong shupan qingming ji (see “Primary Sources”), legal disputes at both the central and local governments, the state and localism, legal principles behind the legislation, application of the “Heavenly principle” to jurisdiction, the Tang-Song transformation, and so on.17 Dependent on these works, Liu proposes some interpretations, legal and nonlegal, of the fundamental changes in the civil law. In the case of McKnight and Liu, their case and topical studies are like the pieces of a big puzzle: the more pieces they can work out, the more complete can be the puzzle, which contains not only legal but also political, economic, social, and cultural explanations to a legal issue.
No matter which approach, the products are few. Legal history has never been very attractive to sinologists throughout the world. According to the last and bibliographical volume of Bainian huimou: falüshi yanjiu zai Zhongguo, edited by Ceng Xianyi in five volumes (Beijing: Zhongguorenmindaxuechubanshe, 2009), there are only about 150 articles, essays, and books on the civil laws before 1911, or around 15 pieces per year from 1911 to 2006. This figure matches the result of another bibliography, Wushinianlai (1950–2000) Zhongguo falüshi yanjiu shumu, compiled and published online by Bettine Birge, Li Liyan, and Huang Yuansheng.
To promote the study of legal history, the Institute of History and Philology at Academia Sinica has systemically organized five international conferences and published their anthologies from 2008 to 2016. Their themes are legal concepts and practice in traditional China (2008); formation and transformation of traditional Chinese legal culture (2008), power and culture in the operation of law during the Ming and Qing (2009); Gender, religion, race, and class in traditional Chinese judicial practice (2013); and Historical sources and jurisprudence (2016). Together there are forty-eight reviewed essays written by forty-four Chinese, Japanese, and Western scholars covering the entire Chinese history, hopefully representative of the field in themes and man. The sixth conference will be held in July 2017, and its theme is the birth, application, and changes of the Chinese legal theories. As the editor of four volumes (2008, 2008, 2013, and 2016), Li Liyan wrote five critical as well as supplementary long prefaces, in the hope that readers can rapidly grasp the latest developments and the newest publications in Taiwan, Mainland China, Japan, and the West over a wide range of legal history.
For a general yet comprehensive introduction to the primary sources, there are four books to begin with: Zhang Weiren’s Zhongguo fazhishi shumu (Taibie: Zhongyangyanjiuyuanlishiyuyanyanjiusuo, 1976); Zhang Boyuan’s Falü wenxian xue (Hangzhou: Zhejiangrenminchubanshe, 1999); He Zhongli’s Zhongguo gudaishi shiliao xue (Shanghai: Shanghaigujichubanshe, 2012); and Endymion Porter Wilkinson’s Chinese history: a new manual (Cambridge, MA: Harvard University Asia Center, 2015), winner of the Stanislas Julien Prize, a must for all sinologists whether non-Chinese or Chinese, and under the directorship of Hou Xudong it is just translated into Chinese in three big volumes: Wei Genshen (Endymion Wilkinson), Zhongguo lishi yanjiu shouce (Beijing: Beijingdaxuechubanshe, 2016). So far there is only one journal fully dedicated to the study of primary sources: Zhongguo gudai falü wenxian yanjiu, edited by Zhongguo zhengfadaxue falügujizhengliyanjiusuo under the directorship of Xu Shihong since 1999.
For the study of legislation, the first important data remain the dynastic law codes, their commentaries and supplements, and the Chronicles of legal affairs (mostly entitled Xingfa zhi) in the dynastic histories. The most reliable English translation is still Wallace Johnson’s The T’ang Code in two volumes (Princeton, NJ: Princeton University Press, 1979), which has tremendously facilitated the translations of other codes, like William C. Jones’s The Great Qing Code (Oxford: Clarendon, 1994), and Yonglin Jiang’s The Great Ming Code: Da Ming lü (Seattle: University of Washington Press, 2005). The second important sources are the administrative laws and imperial edits that revised or replaced the obsolete laws. Most of them can be found in the official Shilu (veritable records) and governmental records of institutions like Huiyao in the Song and Huidian in the Ming and Qing. The most exciting but also frightening sources for the study of pre-Tang laws are the new archaeological findings like the bamboo and wooden slip records of legal matters, which have “transformed” the study of Qin and Han laws (Wilkinson, 307–308), even to the extent of trivializing the aforesaid traditional sources. To our relief, in her “Wenxian jiedu yu QinHanlü benti renshi,” Xu Shihong not only re-emphasized the importance of traditional sources but also proposed methodologies that combine old and new sources (Liu Liyan, ed., Shiliao yu fashixue [Taibei: Zhongyangyanjiuyuanlishiyuyanyanjiusuo, 2016], 1–35). Another kind of new source is the public and private contracts, and a very convenient access is Zhongguo lidai qiyue cuibian, compiled by Zhang Chuanxi in three volumes (Beijing: Beijingdaxuechubanshe, 2014).
To the study of jurisdiction, case books are indispensable. Unfortunately, those compiled before and during the Tang are no longer extant. Real cases before the Song, not the mock cases composed for the civil examinations which test literary skills much more than legal specialty, scatter across the biographies of emperors and officials in the official dynastic histories. A number of them are selected into a few case books compiled in the Song, two of which are useful because of their large collection of cases and absorption of other case books. The first is Zheng Ke’s (?–after 1133) Zheyu guijian, introduced and translated by Liu Junwen in modern Chinese into Zheyu guijian yizhu (Shanghai: Shanghaigujichubanshe, 1988). The second is Gui Wanrong’s Tangyin bishi, introduced and translated by R. H. Van Gulk in English into T’ang-yin-pi-shih, “Parallel cases from under the pear-tree”: A 13th century manual of jurisprudence and detection (Leiden: E. J. Brill, 1956). However, chiefly recorded as administrative achievements more than legal judgments of the emperors and officials, these cases are rather truncated and fragmentary by the standard of modern legal study, usually missing the plaintiffs, defendants, witnesses, or all of the above—and always without testimonies.
The first extant case book in Chinese history is Minggong shupan qingming ji, published anonymously in 1261 with 475 cases and 507 verdicts of the Song. The most authoritative Chinese edition is edited and revised by Wang Zengyu (Beijing: Zonghuashuju, 1987). Brian McKnight and James T. C. Liu translated 209 cases in English into The Enlightened Judgments: Ch’ing-ming chi: The Song Dynasty Collection (Albany: State University of New York Press, 1999). Its importance and some research topics are pointed out in Lau Nap-yin’s “Enlightening our Understanding of the Enlightened Judgments,” T’oung Pao 89.1–3 (2003): 162–177. One major problem with Qingming ji is that 121 or nearly one-fourth of its verdicts are anonymous, which makes it very difficult to determine the time and place of the cases or to know the biographical information of the case writers, such as their native place, religious faith, education, academic and social affiliations, political inclination, official position, and rank, which may have affected the quality of their judgments as well as the accuracy of scholars’ research. In his “Qingtian chuangwai wu qingtian: Hu Ying yu Songji sifa” (Liu Liyan, ed., Zhongguo chuantong falüwenhua zhi xingcheng yu zhuanbian [Taibei: Zhongyangyanjiuyuan and Lianjingchubanshiyegongsi, 2008], 235–282), and “Minggong shupan qingming ji de wuming shupan,” Zhongguo gudai falü wenxian yanjiu 5 (2011): 116–221), Liu Liyan identified ninety-eight authors of these anonymous verdicts and pointed out that quite a number of the verdict authors are more or less connected to the Neo-Confucian school. It is suspected that Qingming ji was compiled by some scholars of Neo-Confucianism in order to promote its legal thoughts, which were still divergent during the Song but getting rigid thereafter, such as its strong opposition to widow remarriage and heterodox religions during the Ming and Qing. If so, despite their wide coverage in time and space, the judgments of Qingming ji might not be nationally representative throughout the Song. Anyway, they can fully represent the colorful legal thoughts and practices of the Neo-Confucian scholar-officials, many of which were definitely shared by their contemporaries, especially when Neo-Confucianism had become state orthodoxy in the civil examinations from the 13th century until the end of the Qing. It is always important to ask how a legal judgment is affected by nonlegal factors such as the judge’s personal academic interests and religious faiths.
The cases of the Yuan dynasty concentrate on Yuan dianzhang, which has two new and excellent punctuated editions: Yuan dianzhang (Dayuan shengzheng guochao dianzhang), edited by Chen Gaohua (Beijing: Zhonghuashuju; Tianjin: Tianjingujichubanshee, 2011); and Hong Jinfu xiaodingben Yuan dianzhang, edited by Hong Jinfu (Taibei: Zhongyangyanjiuyuanlishiyuyanyanjiusuo, 2016). The cases of the Ming and Qing are in the thousands, not only existing in case books and the official compilations of li (precedents) but also in numerous local gazetteers and government archives, which can be found in Wilkinson’s Manual. To avoid drowning in the seas of cases, it is better to start and gain experiences from studying the famous cases in two works: Zhongguo lidai mingan, compiled by Xin Ziniu, Zhang Boyuan, and Hong Pimo, 3 vols. (Shanghai: Shanghai Fudandaxuechubanshe, 1997). Its appendix has 126 cases selected from classical novels, a good starting point to make comparative studies of cases in two genres and Lidai panli pandu, compiled by Yang Yifan and Xu lizhi, 12 vols. (Beijing: Zhongguoshehuikexuechubanshe, 2005).
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(1.) Ma Duanlin, Wenxian tongkao (Guoxue jiben congshu edition), 1474.
(2.) Wallace Johnson, trans., The T’ang Code, vol. 2 (Princeton, NJ: Princeton University Press, 1997), 393.
(3.) Zhu Xi, Zhuzi yulei, comp. Li Jingde (Beijing: Zhonghuashuju, 1986), 2645.
(4.) Zhu Xi, Zhuzi yulei, 2645.
(5.) Dou Yi et al., Song xingtong (Beijing: Zhonghuashuju, 1999; hereafter cited as SXT), 221–222. Translation adapted from Bettine Birge, Woman, Property, and Confucian Reaction in Sung and Yuan China (960–1368) (Cambridge, U.K.: Cambridge University Press, 2002), 54–55.
(6.) Cheng Minsheng, Songdai diyu wenhua (Kaifeng: Henandaxuechubanshe, 1997), 8–33.
(7.) Tuo Tuo, Songshi (Beijing: Zhonghuashuju, 1977), 9802.
(8.) Anonymous, Minggong shupan qingming ji (Beijing: Zhonghuashuju, 1987; hereafter cited as QMJ), 290–291. Birge, Woman, Property, and Confucian Reaction, 84–87.
(9.) QMJ, 277–278; translation adapted from Birge, Woman, Property, and Confucian Reaction, 80–81.
(10.) Liu Zhi, Tianfang dianli zeyaojie (Xuxiu Sikuquanshu edition), 614.
(11.) SXT, 311.
(12.) Wang Shipeng, Meixi Wang xiansheng wenji (Sibucongkanchubian edition), 448.
(13.) QMJ, 303–304.
(14.) QMJ, 225–227.
(15.) Tianyige bowuguan, Zhongguoshehuikexueyuan Lishiyanjiusuo Tianshenglingzhengliketizu et al., Tianyige cang Mingchaoben Tianshengling xiaozheng (Beijing: Zhonghuashuju, 2006), 329.
(16.) Johnson, The T’ang Code, 74–77.