Law, Sexual Morality, and Gender Equality in Qing and Communist China

Abstract

The People's Republic of China (PRC) has plenty of laws on the books, yet one need be neither Chinese nor a Sinologist to be aware that those laws are frequently underenforced.' This Note offers one explanation for the underenforcement by comparing Qing and PRC law. It first suggests that the two regimes are founded on a similar notion of the role of law, and then analyzes their laws governing sexual morality to illustrate that notion and to explain the failure of PRC authorities to enforce gender equality in their handling of certain sex offenses. Part I of this Note starts with the familiar premise that traditional Chinese law, as it existed in the Qing, was essentially a moral code calling for social hierarchy and inequality. It then argues that the close identification of morality with law tended to make the latter aspirational and even unrealistic, so that Qing laws were sometimes little more than unenforced-or unenforceable-declarations of moral and ideological principles. Although the substantive law of the PRC bears little resemblance to that of the Qing, the underlying conception of law and its moral and social role is in many ways similar. A Confucian morality of inequality has given way to a socialist ethics of radical equality, yet modern Chinese legislation is no less moralistic by nature. This, in turn, tends to make PRC law equally aspirational and underenforced. Part II illustrates the notion of law as an aspirational ideal of inequalityy by analyzing Qing and PRC laws governing certain sex offenses: marital transgressions (pre- and extramarital sexual relations), prostitution, and homosexual relations. It concludes that the governing moral principle in the Qing laws was gender inequality and in the PRC laws gender equality, and that, as moral principles rather than legal directives, the laws of both regimes have indeed been compromised. In conclusion, this Note suggests that, ironically, it is the complete, or nearly complete, conflation of law with morality that makes law subject to abuse; as long as PRC laws calling for gender equality are viewed as laudable but not necessarily enforceable moral principles in the Qing tradition, they are liable to be compromised.