by CHRISTOPHER M. ISETT
CONTRACT AND PROPERTY IN EARLY MODERN CHINA, Edited by Madeleine Zelin, Jonathan K. Ocko and Robert Gardella.
In his overarching study of China’s legal tradition (Law and Society in Traditional China [Paris: Mouton and Co.]), published in 1961, Ch’ü T’ungtsu’s few references to property are largely tangential to discussions of the family and inheritance. His accounting followed logically from the fact that the Chinese legal system did not yield a coherent and systematic body of property law before the twentieth century. *** ***……
In the absence of statutory civil law in the Qing, Zelin, Ocko and Gardella, following Philip Huang (Civil Justice in China: Representation and Practice in the Qing [Stanford, CA: Stanford University Press, 1996]), argue in the introduction that there was nonetheless a practice of civil law, the culture of which presumably carried over into the twentieth century. Legal protection of property was a principle discernable in the code itself, they argue. But, it is one thing to demonstrate that the courts (and communities) had ways to handle disputes over property et cetera, which each of these essays ably does, and quite another to argue for civil law. It is also not quite the case that the Qing code recognized the right to property in principle: the closest it came, as Zelin et al. point out, was to punish the theft of property, which is not the same thing. Thus it is argued by Jerome Bourgon (“Uncivil Dialogue: Law and Custom Did Not Merge into Civil Law Under the Qing,” Late Imperial China 23: 1 [2002] pp. 50-90) that in the European civil law tradition, practice became legal custom when it was a rule binding in the community, where it was explicitly cited and enforced by official courts in their judgments, and that there was nothing analogous in the Chinese legal tradition. Indeed, what the essays here show is why practically speaking such a legal tradition might not take root. In both rural and urban settings, Thomas Buoye, Anne Osborne and Feng Shaoting show that courts could not enforce their judgments. In that case, how could the courts have established customary precedent and then enforced it as part of a civil law system? For such reasons, far from being an accepted truth in the field, the notion of a Qing civil law is a contested one, with most Japanese scholars rejecting it outright.
What this collection of essays does point to is the ability of communities to self-regulate, with or without the state’s backing. Along these lines, one of the most interesting offerings is from Myron Cohen. With an anthropologist’s eye, Cohen suggests that contracts in China were first and foremost “social” documents, insofar as their legitimacy was established first and foremost through the participation of social intimates. They became legal instruments when the communities failed to enforce or mediate disputes. On the flipside, Mark Allee shows that magistrates habitually required witness substantiation of contracts. Similarly, the essays by Man Bun Kwan on Tianjin salt merchants, Zelin on Sichuan salt enterprises, Gardella on business partnerships, and Tomoko Shiroyama on Shanghai cotton mills show how commercial groups were formed and held together through communal or familial self-regulation.
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But, we know that magistrates did not cite prior findings as general precedent; rather they cited prior decisions in a particular legal case and in reference to that case alone. What contracts do show is that many practices were widely shared in China, over space and time. These important essays show this and do an admirable job explaining the local logic entailed. But by begging the question of the fit between civil law and the Chinese legal practice, there is no accounting of these practices as a social/legal system.
University of Minnesota, Twin Cities, U.S.A. CHRISTOPHER M. ISETT