Chinese Customary Law Research Articles

Hak Waris Anak Perempuan dalam Pewarisan Lingkungan Masyarakat Adat Tionghoa

In the Chinese community, in the distribution of inheritance according to Chinese custom, sons are given priority over daughters. The problem is what is the inheritance system in Chinese society, the position of daughters in inheritance in Chinese customary law. What are the Inheritance Rights of Girls in Inheritance in the Chinese Indigenous Community? The purpose of this research is to know and understand the inheritance system in Chinese society, the position of girls in inheritance in Chinese customary law, the inheritance rights of girls in inheritance in traditional Chinese society. The type of research used is empirical juridical, descriptive analytical research. Sources of legal materials used are primary legal materials and secondary legal materials. Data collection uses library research and field studies. The data analysis used is qualitative analysis. The inheritance system in Chinese society is from the top line of family relationships, namely sons, the inheritance system is given to sons, woman are not heirs because women marry along with their husbands. The position of daughters in the division of inheritance in Chinese customary law is that sons still have priority in the division of inheritance. They still use the prevailing Chinese customs where men have privileges and a higher position as successors to the clan, inheritance when their parents die becomes their right man. Daughters have no right to inheritance.

Legal Culture Hybridity of the South Kalimantan Malay-Chinese in the Division of Inheritance

Cultural negotiation is essential because the process always involves conflict and differences. Malay-Chinese is one of the minority groups in South Kalimantan. This study aims to find out how Malay-Chinese culture negotiates differences in the legal culture of inheritance distribution between Chinese customary law, Malay custom, and Islamic law. This research is empirical legal research conducted under an interdisciplinary umbrella. This type of research is field research or research, empirical law. In this study, the author uses a legal sociology approach or practical juridical approach, which is an approach that looks at the legal reality in society, and a legal anthropological approach. The research findings show that Malay-Chinese negotiates differences in Islamic values and religion by choosing or combining the two cultural values. The negotiation process is carried out by applying cultural values as they are ethnic and adapt to the cultural values of Malay Islam. This cultural negotiation process then builds a hybrid Malay-Chinese identity. Resistance, their hybridity is used to survive and to fight the dominant Malay Islamic cultural values.

Influence and Function of the Customary Law of Ethnic Minorities on Environmental Protection

Customary law of ethnic minorities is recognized by ethnic groups with the same geographical and cultural environment, and formed through long-term practice in their social life. Most Chinese Customary Law of Ethnic Minorities had the tradition of natural worship activities, which originate from the worship of the natural, such as the heaven and the earth, landscape, animals, and plants, this has been provided the foundation for environmental protection. In order to further understand the function of corresponding law on environment, this study try to analyze the environmental protection significance by the customary law of ethnic minorities in consideration of the ancient environmental protection thought and the modern environmental protection case. The ideas from ancient Chinese philosopher has been introduced, and the regulation in ancient meteorites were analyzed. Then three kinds of minorities in China, such as Gelao nationality in Guizhou, Ganzi Tibetan, Jing minority, were described. For Gelao, their worship and respect for forest and mountain helped them to protect the natural resource. While for Ganzi Tibetan, they have holy mountains and rivers and formed many taboos and living customs to protect natural resources and animal resources due to their awe and respect for nature. These behavior surly helped to protect the environment. Jing minorities lived in the sea for long time, their belief for god of sea and mountain had helped them to protect the environment by a variety of methods such as village regulation, family words, as well as festival celebration. Then the roles of customary laws on environmental protection were discussed. The concept of “all things have spirit” inside customary law helped the local people for implementation of the laws, also benefited for the law legislation.

Historians at the Court: How Cultural Expertise in Qing Law Contributes to the Invention of Hong Kong “Chinese Customary Law”

This paper relies on the narrative of a renowned historian of Qing law from China mainland who has been called by Hong Kong High Court in 2007, to witness as an expert in “Chinese customary law.” At the opening of the trial, he recognized one well-known and estimated colleague from Taiwan in the expert engaged by the other party. During one week, these two legal historians called up a vast array of knowledge in Chinese history, culture, and law, to ensure the triumph of their party. The contest opposed the representatives of two branches of a same lineage who claimed their right to manage the lineage common wealth. As both were collaterals with dubious link with the original lineage, experts engaged in sophisticated arguments to make their cause prevail. Successively were adduced lineage registers the tabooing of fathers and emperors' personal name in the Chinese tradition, the degree of kinships as represented by “mourning charts” included in the Qing penal code. Even though it was “privately settled” before any judicial decision, this case raises questions on the very nature of “Chinese customary law”, and the role of “cultural expertise” at Common law in a Chinese environment.

The treatment of Chinese customary law in British colonial Hong Kong

A struggle has been underway in Beijing, othering Hong Kong’s British common law legal system by rhetorically subordinating it as a foreign colonial relic. How did the British develop their Hong Kong governance policies for proper law, as they ruled Hong Kong? These policies developed without resort to all the available scholarship, so that they could other the Hong Kong people into a subaltern group. Hong Kong was already constituted as a township with its own continuing township liturgy, customary ritual and social structure. The colonial administration ignored this, creating a Hong Kong subaltern.

Social Hierarchies and the Formation of Customary Property Law in Pre-Industrial China and England

Comparative lawyers and economists have often assumed that traditional Chinese laws and customs reinforced the economic and political dominance of elites and, therefore, were unusually “despotic” towards the poor. Such assumptions are highly questionable: Quite the opposite, one of the most striking characteristics of Qing and Republican property institutions is that they often gave significantly greater economic protection to the poorer segments of society than comparable institutions in early modern England. In particular, Chinese property customs afforded much stronger powers of redemption to landowners who had pawned their land. In both societies, land-pawning occurred far more frequently among poorer households than richer ones, but Chinese customary law allowed debtors to indefinitely retain redemption rights over collateralized property, whereas English debtors would generally lose the property permanently if they failed to redeem within one year. This article argues that the comparatively “egalitarian” tendencies of Qing and Republican property institutions stemmed from the different ways Chinese and English rural communities allocated social status and rank. Hierarchical “Confucian” kinship networks dominated social and economic life in most Chinese villages. Within these networks, an individual’s status and rank depended, in large part, on his age and generational seniority, rather than personal wealth. This allowed many low-income households to enjoy status and rank quite disproportionate to their wealth. In comparison, substantial landed wealth was generally a prerequisite for high status in early modern England, effectively excluding lower-income households from positions of sociopolitical authority. Chinese smallholders possessed, therefore, significantly more social bargaining power, and were more capable of negotiating desirable property institutions. Paradoxically, the predominance of kinship hierarchies actually enhanced macro-level political and economic equality. Category: Comparative Legal History

Beyond colonialism: osmotic reconstruction of gender/sexual justice in Hong Kong

In Hong Kong, even though the Bill of Rights Ordinance (the localized version of ICCPR), Sex Discrimination Ordinance and a series of legal reforms (such as the cancellation of marital exemption of rape and the recognition of sexual discrimination in criminal law) were enacted and introduced respectively since the 1990s, gender/sexual discrimination in the legal discourse still persists; for example: Chinese customary law which only recognizes the male’s right to build small houses in the New Territories remains an exception under the Sex Discrimination Ordinance; the government insists on not tabling an anti‐sexual‐orientation discrimination bill; the right to same sex marriage/partnership is still absent from any legal‐political agenda; and so on. Some politicians and academics argue that any attempt to transplant a Euro‐American individual‐centric perspective of gender/sexual equality/justice will violate the Han‐Chinese culture of harmony. In the paper, I will adopt a critical perspective in examining the above argument and examine why harmony politics becomes a meta‐narrative in Han‐Chinese socio‐legal culture and how human nature/subjectivity is re‐constituted in such a context. I will further argue that a culture should always be meticulously and critically represented and investigated in order to reproduce ‘gender/sexual justice’. I will also investigate the possibility of scrutinizing and exploring the spaces of resistance within the Han‐Chinese socio‐legal culture in Hong Kong, where foreign theory of gender/sexual justice/equality and related legal reforms can be engaged to politicize current discrimination and suppression.

Historiens à la barre. Comment les spécialistes du droit des Qing participent à la création du droit coutumier de Hong Kong

This is a testimony by a renowned historian of Qing law who recently appeared before the Hong Kong Supreme Court, to act as an expert in “ Chinese customary law” at the request of a party involved in a dispute on land inheritance. At the opening of the trial, he recognized one well-known and estimated colleague in the expert engaged by the other party. During one week, these two legal historians called up a vast array of knowledge in Chinese history, culture, and law, to ensure the triumph of their party. The contest bore on lineage kinships and inheritance, on the mourning duties as represented in charts included in the Qing code, their legal significance and possible enforcement, on the tabooing of personal names in Chinese history, etc. As a result, this testimony raise questions on the very nature of so called “ Chinese customary law”, and gives insights on the practice of Common law in a Chinese environment.

Harmonizing the Resistance, Resisting the Harmony: A Critical Discourse on the Reconstruction of Indigenous Theory of Gender Justice in Hong Kong

AbstractIn Hong Kong, even though the Bill of Rights Ordinance (the localized version of ICCPR), Sex Discrimination Ordinance and a series of legal reforms were enacted and introduced respectively in 1991 and 1994, gender discrimination in legal discourse still persists. Chinese customary law, which only recognises the male's right to build small houses in the New Territories, remains an exception under the Sex Discrimination Ordinance; and the oppression of (female) sex workers is not yet recognized. Some politicians argue that discrimination is inherent in the Han-Chinese culture of harmony, which is impossible to understand from the Euro-American individual-centric perspective of gender equality. They further quote Daoist YIN-YANG cosmology where YANG/Male/Masculinity is supreme; and Confucian Constant Virtues where women are marginalized as examples showing that Han-Chinese culture, where harmony is hegemonized, cannot tolerate or accept gender equality. This paper adopts a critical perspective in examining the above arguments and points out not only that a “pure” version of patriarchal socio-legal culture in the name of harmony hegemony does not exist, but (indigenous) culture should always be meticulously and critically represented in order to reproduce “justice”. I would also argue that it is possible to scrutinize and explore the spaces of resistance within the Hong Kong Han-Chinese socio-legal culture, where foreign theories of gender justice/equality and related legal reforms can be examined.

The Paradox of Hong Kong Colonialism: Inclusion as Exclusion

AbstractThis paper examines the British legal policy in Hong Kong which preserved Chinese customary law as a subtle and indirect form of social control. The initial takeover of Hong Kong by the British in 1841 was motivated by economic interest in China. Hong Kong was to be developed into an entrepôt under a laissez-faire government. In order to pacify the local subjects and the Chinese government, English law was applied to British subjects but the local Chinese were governed by Chinese customary law. Gradually, the interpretation of customary law by English judges and common law courts transformed and even created a new understanding of this law. The preservation of customary law had the paradoxical effect of ousting the local narrative. One hundred and fifty-six years have passed; Hong Kong has fulfilled the British dream of being a flamboyant commercial centre. However, in less than 150 days, Hong Kong will be elevated from the status of a British colony to that of “special administrative region” of China. Nonetheless, the rhetoric of laissez-faire government continues to be reflected in the policy of “high degree of autonomy.” The fate of Hong Kong is certainly unknown. Hopefully, the study of its past experience will shed some light on its future.

The Twilight of Chinese Customary Law Relating To Marriage in Malaysia

The Twilight of Chinese Customary Law Relating To Marriage in Malaysia

A Requiem for Chinese Customary Law in Hong Kong

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The Choice of Chinese Customary Law in Hong Kong

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Certain Aspects Of Chinese Customary Law In The Light Of Japanese Scholarship

IN October 1948, the Governor of Hong Kong appointed a committee to consider the position of Chinese law and custom in that colony. The report of this committee, which was published in February 1953,1 will have drawn attention to the fact that the old family law of China, quite apart from the limited recognition given to it by the courts, continues to exercise considerable influence on the lives of millions of Chinese, not only in Hong Kong, but in the other British territories of South-East Asia. In China itself, as regards matters of the family, the Civil Code of the former National Government had never, over most of the country and for the mass of the people, any very eifectual force, and the customary law continued to exist in almost undiminished vigour until the establishment of the People's Government in 1949.2 Since then the situation has changed completely. New laws regarding marriage and property are effectively enforced, and have everywhere replaced the old customs and, what is still more important, an extremely efficient system of mass-education in the principles of Communism will before long have expelled from people's minds those beliefs on which the old Chinese law was based. From now on, apart from Formosa, it is only in Hong Kong and among the communities of overseas Chinese throughout South-East Asia that Chinese customary family law will continue to exist, but even with such limitations it is still of sufficient importance to make its study of practical significance.