A new principle in the making: from “freedom” to “self-determination” of marriage through legal practice

Abstract

Although the case of Feng v. Zhang was closed, we should return to Prefect Ma's writ because it included an important terminological change that contained the legal grounds for adjudication. In the writ, Ma first invoked the Nationalist legal code as the grounds for criminal penalty. Then the marriage adjudication was made on the basis of the 1939 marriage regulation. It is most significant that instead of using the term “freedom of marriage” ( hunyin ziyou ) that had been propagated in the BR or “on the basis of the individual's free will,” as the 1939 regulation terms it, Ma announced that “under the principle of self-determined marriage in the Border Region” ( Bianqu hunyin zizhu de yuanze 边区婚姻自主的原则), the union of Peng'er and Zhang Bo was valid. In the 1939 regulation, the term “freedom/ ziyou ” was at the heart of the general principle for marriage. Ma's statement of “self-determination” as the principle for marriage in the Border Region seemed legally rootless. This thus raises many questions concerning why Ma used “ zizhu ” instead of “ ziyou ” as the principle on which to judge a marriage and what the effects of this change were. Was it only a rhetorical variation of free marriage, or did it signal a meaningful turning point in the marriage reform? Where did the term “self-determination/ zizhu ” come from, and how was it different from “ ziyou ”? What was the reason for this terminological change? What was the significance of this change of phrase in the context of the 1940s’ SGNBR, as well as the broader twentieth-century social movements in China? How important was this neologism in the social and cultural context and in legal practice in the 1940s’ SGNBR? More specifically, why and how did legal workers in the SGNBR invent or adopt the term zizhu to substitute ziyou ? How important were legal practices and the judicial system in recasting the neologism for a more effective implementation of the marriage reform? This chapter traces the terminological evolution of both ziyou and zizhu from a historical perspective, as well as the way they acquired legitimacy and modernity through social movements and legal practice. It shows that based on legal practice, the revolution had taken over a vernacular term and invented its own discourse and principles of marriage that were more compatible with local conditions than those brought from the littoral cities.