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Abstract
In the Qing dynasty, one of the main characteristics of Chinese legal culture was legal pluralism. The pluralistic norms were contested and negotiated with the imported Western legal concepts in response to the challenges of Western legal norms due to imperialism and global trade, but remained intact. The spread of Chinese laws to other jurisdictions, such as Taiwan, Hong Kong, and the Straits Settlements, also introduced new challenges in these other jurisdictions with regard to adopting Chinese laws for their Chinese communities. The Qing Chinese laws were then adopted, adapted, and absorbed into their colonial legal systems, which then formed a pluralistic colonial legal order.
Abstract
In this chapter, I pose this question: how did the Supreme Court (Da Li Yuan) in the ROC empower a wife seeking a divorce in court? In answering this question, this chapter explores how the Supreme Court interpreted the divorce provisions in Republican China, in which until 1931 the divorce provisions were very similar to the divorce laws specified in the Qing Code. The Supreme Court tried to create more flexibility and rights for women seeking a divorce in early Republican China by widening the reinterpretation of the divorce rules on matters such as dissolution of a marriage by mutual consent, the wife had committed acts that negated her duty to maintain the matrimonial relationship (yijue), and a woman who remarried without the required authorization from the authorities. The legal explanations by the Supreme Court then paved the way for the establishment of new divorce rules based more upon Western models—rather than traditional rules—in the new Civil Code in 1931 in Republican China. In this way, the judgments on divorce by the Supreme Court offered inspirational views of divorce and helped to move China from the Qing Code to legislative reform on divorce in the Civil Code, which was integral to reforms of family law in Republican China.
Abstract
This chapter investigates the imposition of the British colonial legal system to Hong Kong. The focus is the response of the Hong Kong government to the change from the pluralistic legal order in Republican China. In 1953, the Hong Kong government published the Strickland Report on Chinese laws and customs in order to reform Chinese customary practices in Hong Kong. The report was compiled in response to legislative and customary changes in Taiwan and in the newly declared People’s Republic of China. By examining government archives related to the Strickland Report, the chapter investigates the general application of Chinese customary laws in Hong Kong and the reasons that this report in 1956 failed to be adopted by the colonial government. The Strickland Report was the first attempt by the colonial government to deal with the changing marriage laws in China since the Qing government. The reforms proposed by the Strickland Report were ultimately rejected in 1956 due to the opposition by senior Chinese figures in Hong Kong.
Abstract
This chapter explores the relationship between the Chinese customary practices in the context of investigative reports in the late Qing and Republican China periods. This chapter investigates the impact of state laws at local levels in late imperial China and Republican China. Two important investigative reports were produced on local customs from the late Qing to the Republican period. During the late Qing, an official investigative project was launched to gauge local customary practices in all provinces, in order to help in drafting the Commercial Law and the Civil Law. In Republican China, reports on local customs were compiled by the South Manchurian Railway Corporation (operated by the Japanese authorities) in the occupied territories in China. Using the investigation on family law as an example, the chapter investigates the challenges of reforms in state laws on local norms and examines the responses of local communities to “Westernization” of the state legal system by comparing these reports.
Abstract
This book explores and theorizes academic discourses about legal pluralism and legal culture in the traditional Chinese legal system as exemplified in the Qing dynasty. The discussion places the Qing legal system (and quasi-legal norms) in the broader context of political and social control in the Qing government. In addition, it also theorizes the diffusion of traditional Chinese laws and legal culture to other territories (e.g., Taiwan, Hong Kong, Malaya, and the Straits Settlements) and shows that the state laws and pluralistic norms in Qing China became legal pluralism in these territories.
Abstract
This chapter discusses the quasi-legal order and the contested legal space in the administration of justice by local magistrates in Qing dynasty under the notion of avoiding litigation. Starting with the Sacred Edict of the Kangxi Emperor, which emphasized the important role of the local magistrate in avoiding litigation. Based on extant case materials and local archives, this chapter investigates the avoidance of litigation at local levels and the promotion of administrative or judicial mediation as a way to construct a social order for promoting peace and harmony in local communities.