Research from Archival Case Records

Law, Society and Culture in China

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Legal history studies have often focused mainly on codified law, without attention to actual practice, and on the past, without relating it to the present. As the title— Research from Archival Case Records: Law, Society, and Culture in China—of this book suggests, the authors deliberately follow the research method of starting from court actions and only on that basis engage in discussions of laws and legal concepts and theory. The articles cover a range of topics and source materials, both past and present. They provide some surprising findings—about disjunctures between code and practice, adjustments between them, and how those reveal operative principles and logics different from what the legal texts alone might suggest.

Contributors are: Kathryn Bernhardt, Danny Hsu, Philip C. C. Huang, Christopher Isett, Yasuhiko Karasawa, Margaret Kuo, Huaiyin Li, Jennifer M. Neighbors, Bradly W. Reed, Matthew H. Sommer, Huey Bin Teng, Lisa Tran, Elizabeth VanderVen, and Chenjun You.

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Philip C. C. Huang taught at UCLA from 1966 to 2004, advancing to “Professor, Above-Scale” in 1991, and has taught at the Renmin University of China, in the Law School and the School of Agricultural Economics and Rural Development, since 2005. He was the founding director of UCLA’s Center for Chinese Studies from 1986 of 1995, the (founding) editor of Modern China: An International Journal of History and Social Science from 1975 to the present, and the (founding) editor of 中国乡村研究 ( Rural China: An International Journal of History and Social Science) from 2003 to the present. His major publications are his trilogy on rural China: The Peasant Economy and Social Change in North China, 1985 (awarded the Fairbank prize of the American Historical Association); The Peasant Family and Rural Development in the Yangzi Delta, 1350-1988, 1990 (awarded the Levenson prize of the Association for Asian Studies); and 超越左右:从实践历史探寻探寻中国农村发展出路 ( Beyond the Left-Right Divide: Searching for a Path of Rural Development in China from the History of Practice), in Chinese only, 2014. And his trilogy on Chinese civil justice: Civil Justice in China: Representation and Practice in the Qing, 1996; Code, Custom, and Legal Practice in China: The Qing and the Republic Compared, 2001; Chinese Civil Justice, Past and Present, 2010. All the books in English have been published in multiple printings and editions in Chinese.

Kathryn Bernhardt is professor emerita of history at the University of California, Los Angeles. She is the author of Rents, Taxes, and Peasant Resistance: The Lower Yangzi Region, 1840-1950 (Stanford University Press, 1992; awarded the 1992 John K. Fairbank prize of the American Historical Association) and Women and Property in China, 960-1949 (Stanford University Press, 1999) and co-editor (with Philip C. C. Huang) of Civil Law in Qing and Republican China (Stanford University Press, 1994).
Introduction
      Philip C. C. Huang

Part One
Analytical Approaches: History of Practice•Women's History•Local Administration•Discourse
Analysis•Case Records as Ethnographic Evidence


1. The History-of-Practice Approach to Studying Chinese Law (Introduction to Chinese Civil Justice, Past and Present)
      Philip C. C. Huang
Practice as Opposed to Theory: Legal Formalism and the History of Practice of American Law
Practice as Opposed to Representation: Qing Law
Practice as Opposed to Institutions: Male and Female Inheritance Rights and Their Actual Operation
The History of Practice vs. Formalist Theory
Practical Moralism
Divorce Law Practices and the System of Court Mediation
The Third Realm and Centralized Minimalism
Community Mediation under Minimalist Governance
2. Women and Property in China, 960-1949, Introduction and Conclusion
      Kathryn Bernhardt
Introduction
Conclusion
3. Illicit Bureaucrats
      Bradly W. Reed
Preface
The Issues
Past Scholarship
4. From Oral Testimony to Written Records in Qing Legal Cases
      Yasuhiko Karasawa
Introduction
The Status of Depositions in Qing Legal Procedure
Writing Legal Testimony in the Context of Literary Culture
Records of Oral Testimony Written in the Vernacular
Composing Testimony at the Local Level: A “Directly Examined” Case from Beijing
Conclusion
5. Abortion in Late Imperial China: Routine Birth Control or Crisis Intervention?
      Matthew H. Sommer
Introduction
Past Scholarship
Abortion in Qing Legal Records
Unsafe Abortion in Modern China
Conclusion

Part Two
Buying and Selling of Land•Homicides


6. Customary and Judicial Practices and the Criminal Sale of Land in Qing Manchuria
      Christopher Isett
Sources and Methods
The Criminalization of Customary Practice in Manchuria
The Sale of Qing Land to Commoners
Rural Agents, Peasant Defiance, and the Politics of Local Compromise
Adjudication in the Face of Criminal Customary Acts
7. Guoshi Killing: The Continuum of Criminal Intent in Qing and Republican China
      Jennifer M. Neighbors
Guoshi Killing in the Qing Dynasty
The Republican Codes
Conclusion

Part Three
Tax•Education•Local Governance


8. Between the State and the Village: Land taxation and “Substantive Governance” in Traditional China
      Huaiyin Li
Introduction
The County Government and the Xiangdi
Village Regulations on Taxation in the Late Qing
Village Regulations on Taxation in the Republican Period
The Collection of Enclave Taxes
Conclusion
9. Village-State Cooperation: Modern Community Schools and Their Funding, Haicheng County, Fengtian, 1905-1931
      Elizabeth VanderVen
The Setting: Fengtian Province and Haicheng County
Funding the New Community Primary Schools
Multi-Village Relationships: Creativity, Cooperation, and Conflict
10. Power Networks and State-Society Relations in Republican China
      Danny Hsu
Local Governance in Late Imperial China
Xinmin County in Early Republican China
Power Networks in Xinmin County
Sub-County Administration in the Early Republic
Sichuan and the National Government
Conclusion

Part Four
Concubinage•Spousal Abuse •Transnational Families


11. Ceremony and the Definition of Marriage under Republican Law
      Lisa Tran
Ceremony in Social Practice
Ceremony in Early Republican Law
The Legal Space for Concubinage in the Early Republic
Ceremony in the 1929-30 Civil Code
From Consent to Complicity under GMD Law
12. Spousal Abuse: Divorce Litigation and the Emergence of Rights Consciousness in Republican China
      Margaret Kuo
The Prevalence of Intolerable Cruelty Divorce Litigation
From Grievance to Injustice: “Naming, Blaming, and Claiming”
“Please protect women’s rights”: Cao Xiuzhen’s Pleas
Intolerable Cruelty Defenses: Marriage Finance, Economic Hardship, and Socioeconomic Interpretations of Rights
State Approaches to Intolerable Cruelty Cases: Judicial Outcomes Affirm a Modern Conjugal Patriarchy
Individual Rights and the Ironic Affirmation of Modern Conjugal Patriarchy
13. Law, Gongqin and Transnational Polygamy: Family Matters in Fujian and British Malaya, 1855-1942
      Huey Bin Teng
Between Two Worlds: The Making of Chinese Customary Law in Malaya
Exceptions to the Common Law: The Making of Chinese Customary Law
Mediation and Enforcement: The Gongqin in Cross-Border Conflicts

Part Five
Past and Present: Local Administration• Court Mediation


14. Centralized Minimalism: Semiformal Governance by Quasi-Officials and Dispute Resolution in China
      Philip C. C. Huang
The Evidence
Centralized Minimalism
Confucianized Legalism
Bureaucratization and Minimalism in Contemporary China
15. Court Mediation in China, Past and Present
      Philip C. C. Huang
The Ideology of Mediation in the Qing
The Actual Practice of Qing Courts
Mediation in the Republic
The Ideology of Mediation in Post-1949 China
The Practice of Court Mediation in Post-1949 China
Between Mediation and Adjudication
The Nature of Contemporary Chinese Judicial Mediation
The Qing, the Republic, and Post-1949 China
The Logic of Chinese Court Mediation

Postscript
16. How a "New Legal History" Might Be Possible: Recent Trends in Chinese Legal History Studies in the United States and Its Implications
      Chenjun You
Introduction: An Intellectual Earthquake?
Westerners’ Misunderstandings of and Reflections on Traditional Chinese Law
Judicial Archives and Research on Chinese Legal History
Chinese Legal History Studies and the Social Sciences
Discovering a Historical Sense in the Meeting of Empiricism and Theory
Stones from Other Hills May Serve to Polish the Jade of This One 他山之石,可以攻玉: The UCLA Research Group’s Achievements and Chinese Introspection
Conclusion
All interested in the history, theory, and practice of law in China, both past and present, as well as how legal archives in China have shaped the study of such.