Philip C.C. Huang, Code, Custom, and Legal Practice in China. The Qing and the Republic Compared

Philip Huang set up a Los Angeles-based study group to examine
Chinese law, and has created a collection with Stanford University Press, this
being the sixth volume. This book is also the second part of an intended trilogy.
Following his study on Qing civil law (Civil Justice in China, Representation
and Practice in the Qing, 1996), he had planned to produce a volume on the Republican
period, but found it more informative to present Republican civil law in contrast
to that of the preceding period. This book is thus a new contribution to the history
of Chinese law by an eminent authority in this field. But, by virtue of the book’s
comparative approach, it also amounts to a study on the political and social changes
that took place during the first half of the twentieth century from a legal perspective,
a viewpoint that is often neglected by historians, undoubtedly because it is generally
regarded as too “technical”.

The book is presented in two parts–the first, the shorter
of the two, retraces the history of the code and the legal institutions from 1900-45.
It recounts the work of the legal reform commissions during the decade from 1900
to 1910, which gave rise to new codes, both civil and penal, inspired notably
by the German model. However, the draft civil code was never adopted, and a revised
version based on the “civil” parts extracted from the Qing code remained
in use until the promulgation of the civil code drawn up by the Kuomintang government
in 1929-1930. Procedural reforms were, however, gradually applied from the latter
years of the Qing period–separation of penal and civil law (which represented
only “minor” matters in the Qing code and became a separate area), separation
of the judiciary and the executive within the local administration, and the emergence
of the legal profession. These developments in legal practices thus facilitated,
not followed, the adoption of a law that was radically different from the Qing
code. The second part of the book examines the similarities and the differences
between Qing law and Republican law, in terms of the legal texts as well as the
practices (through a sample of cases drawn from local archives), by means of five
questions relating essentially to civil law–the conditional sale of land
(dian), ownership of the topsoil (dual ownership of agricultural land), debts,
support given to elderly parents, and family law as it applies to women (marriage,
adultery and divorce). Philip Huang’s writing style is clear and his arguments
are well-constructed. It is a great credit to him that he has made such a subject
intelligible to non-specialists, such as this reviewer.

On each point, the author endeavours to bring to the fore
the “logic” (the ideological foundations) of the two codes, the practices
of the judges, and “custom” (in fact, here, simply the practices common
among the people). Sometimes the codes try to follow “custom”, sometimes
they rebuff it. On the whole, the contrast between the Qing and the 1929-30 codes
appears larger than that between the real-life cases found in the archives from
the Qing and Republican periods. In both kinds of archives, we find very similar
issues, stemming from a popular practice that changed only slowly. Republican
judges often tried to find compromises between the radically new logic of the
1929-30 code and traditional attitudes. Maybe this was because the code had unexpected
consequences, maybe because the code itself retained traces of the paternalistic
Qing ideology, or maybe simply because the judges still broadly shared the ancient
“logic”. But changes in the code as well as in jurisprudence moved along
similar lines. Philip Huang sums up this evolution in two breaks: 1) from an agricultural
economy to a capitalist economy (the former supporting a farmer’s rights
to his land and protecting him from usury and dispossession, and the latter recognising
individual ownership, capital and investment); and 2) from a patriarchal law to
an individualistic law, implying gender equality, marriage as a contract between
two individuals, and the right of women to self-determination.

Without political prejudice, Philip Huang wants to highlight
all the positive aspects of the Kuomintang legal undertaking by demonstrating
the advances (women’s rights and a market economy) made possible by the new
code as well as the legal practices that go with it. One might wonder if the examples
chosen are representative of the Republican laws as a whole. Property law and
the status of women are areas in which the Kuomintang had a genuine, positive,
modernistic agenda. In a different area, which borders on civil law (which interests
this reviewer), i.e. the law relating to temples and the clergy, the evolution
is quite different. Admittedly, there too we move from an absolutist model (under
the Qing, the emperor was the only religious authority, and could declare a cult
illicit and ban it), to another ruled exclusively by law. However, by its anti-religious
laws, the Nanking government practiced theology and arbitrarily sorted, under
cover of scientific justification, the cults which it authorised and those that
had to be banned. The laws relating to temples (notably those of 1915 and 1928)
also marked a greater interference by the state in an essentially private area
and new prerogatives for the local authorities, who, notably, allowed themselves
to seize land from religious foundations, as well as to deny the existence of
certain types of organisations (temple corporations) which, although they were
not formally protected by Qing law, were recognised in practice by the magistrates.

In short, Philip Huang’s book paints a picture of the
changes introduced by a code that stemmed from an imported ideology (free-market
capitalism, giving priority to contracts between individuals as a source of social
relationships). The adaptation of this ideology in the Chinese context is thus
reflected in a mixed evolution in terms of liberties, increasing certain ones
only to cut back on others.

Translated from the French original by
Bernie Mahapatra

Back to top