Uncivil Dialogue: Law and Custom did not Merge into Civil Law under the Qing

Abstract

For a European student of the making of Chinese civil law, the recent trend of American scholarship is at the same time highly stimulating and somewhat disconcerting. For at least half a century the dominant thesis in European as well as Asian historiography has been that the Chinese empire had no notion of a separate “civil law,” and that the Qing code was quite inadequate to settle what Western law calls “civil matters.” However, a kind of “private law” existed in the great range of local customs that ruled marriage agreements, successions, land sales, and so on, all rules that were respected by the commoners and sensible magistrates as well. Thus, “civil law” was absent from official constructs, but present in social reality and local administration, under the form of “customary law.” When China converted to Western legal standards, the Chinese Civil Code published in the 1930s was opportunely supplemented by great collections of customary law in “civil and commercial matters.” In this general scheme of interpretation, the only kind of “civil law” that was supposed to exist in imperial China was “customary law,” and the latter was doomed to become the traditional part of modern civil law. This scheme is simple and cohesive, and Chinese legal reformers themselves apparently complied with it when they collected customs with the intent to include them in the Republican Civil Code. I also at first adhered to it, but have gradually come to see it instead as a case of “invented tradition.” By this I mean that “customs” and “customary law” were new categories imported from the West, just like civil legislation itself, with no roots in the Chinese past whatsoever. In this paper, I minutely critique various expressions of the “civil-customary law” hypothesis, to clear the way for a more accurate interpretation of how the imperial legal system managed social practices.