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Disobedient Children, Hybrid Filiality: Negotiating Parent–Child Relations in Local Legal System in Republican China, 1911–1949
Published online by Cambridge University Press: 15 January 2024
Abstract
The principle of filial piety underpinned both parent–child relations and, more broadly, Qing legal and social order. Entering the turbulent years of the Qing–Republic transition, filial piety went through substantial changes. Drawn from the local legal archives in Jiangjin county, Sichuan, this research traces the transformation of filial piety in legal practice during the first half of the twentieth century. It argues that two overlapping processes—legal reforms and nation-state building—synergized to restructure the meaning of filial piety from a largely integrated principle in Qing, which bridged the gaps between filiality and loyalty to the emperor and between personalized morality and imperial state legitimacy, to divergent new interpretations of filial piety, including the individualist filial piety, nationalist filial piety, legal filial piety, and sentimental filial piety. Each new interpretation inherits only part of its original meaning and incorporates newly introduced legal knowledge of legal equality and property ownership. The article concludes that various, sometimes contradictory interpretations of filial piety indicate the Republican legal reforms as an in-between, dynamic spectrum of legal change with vigorous negotiations among different legal actors and knowledge regimes.
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References
1 The Database of Chinese Judicial Archives Jiangjin Section (hereafter Jiangjin), distributed by Shanghai Jiaotong University Press, http://sifa-hw.datahistory.cn, J007-0026-00148, 5–47. This article adheres to the East Asian convention by presenting Chinese names from the archives in the format where last names precede given names.
2 Fei, Xiaotong, From the Soil, the Foundations of Chinese Society: A Translation of Fei Xiaotong's Xiangtu Zhongguo, trans. Hamilton, Gary G. and Wang, Zheng (Berkeley: University of California Press, 1992), 114–19Google Scholar; Qu, Tongzu, Zhongguo falü yu Zhongguo shehui [Law and Society in Traditional China] (Beijing: Shangwu Yinshu Guan, 2003), 5–30Google Scholar; Du, Yue, State and Family in China (Cambridge: Cambridge University Press, 2022), 23–59Google ScholarPubMed.
3 Du, State and Family in China, 135–202.
4 The 104 cases also include unpublished archival legal documents. We identified seventy-two cases through a direct keyword search for “inheritance” (yichan) within the “property dispute” (caichan jiufen) category. An additional thirty-two cases related to parent–child disputes were identified through extensive exploration of the entire database and manual selection of unpublished legal documents from the archive. Yang Shuqin's case was found in this manner when we searched “mother” (mu), “stepmothers” (jimu), and “filial piety” (xiao) as keywords in the database. This case selection method, which combined systematic search and scattered exploration, ensured that we examined as many cases of intergenerational property disputes as possible.
5 Jiangjin County Gazetteer Editorial Committee, Jiangjin xianzhi [Jiangjin Gazetteer] (Chengdu: Sichuan kexue jishu chubanshe, 1995), 1, 57–59.
6 Spence, Jonathan D., The Search for Modern China, 3rd ed. (New York: W.W. Norton & Company, 2013), 401–3Google Scholar.
7 Jiangjin xianzhi, 57–59, 619.
8 Strauss, Julia C., “The Evolution of Republican Government,” The China Quarterly 150 (1997): 346–47CrossRefGoogle Scholar.
9 For example, Philip Huang discusses the “essential continuity of practice” between the Qing and Republic legal systems. Huang, Philip C. C., Civil Justice in China: Representation and Practice in the Qing (Stanford: Stanford University Press, 1996), 8CrossRefGoogle Scholar. In his study of civil justice, Xiaoqun Xu focuses on the interplay between law and custom and on legal interpretations by judges, arguing that “law, custom and social norms together informed judges’ rulings on civil disputes, both in the Qing and the Republic,” indicating significant continuities. Xu, Xiaoqun, “Law, Custom, and Social Norms: Civil Adjudications in Qing and Republican China,” Law and History Review 36, no. 1 (2018): 78CrossRefGoogle Scholar. See also Zelin, Madeleine, “A Critique of Rights of Property in Prewar China,” in Contract and Property in Early Modern China, eds. Madeleine Zelin, Johnathan K. Ocko and Robert Gardella (Stanford: Stanford University Press, 2004), 17–36CrossRefGoogle Scholar; Mühlhahn, Klaus, Criminal Justice in China: A History (Cambridge: Harvard University Press, 2009)Google Scholar.
10 For example, Yue Du discusses the substantial changes in the code and how they shaped governance and legitimation of the Republican state. With sophistication, her work reveals the interplay between the transformation of nation-state building and the use of filial piety in practice from the late imperial period to the Republican era. See Du, State and Family in China, especially 238. See also Thai, Philip, “Law, Sovereignty, and the War on Smuggling in Coastal China, 1928–1937,” Law and History Review 34, no. 1 (2016): 75–114CrossRefGoogle Scholar.
11 Mann, Michael, “The Autonomous Power of the State: Its Origins, Mechanisms and Results,” European Journal of Sociology 25, no. 2 (1984): 185–213CrossRefGoogle Scholar. More recently, see also Tarrow, Sidney, “Mann, War, and Cyberspace: Dualities of Infrastructural Power in America,” Theory and Society 47, no. 1 (February 1, 2018): 61–85Google Scholar. For symbolic power, see Loveman, Mara, “The Modern State and the Primitive Accumulation of Symbolic Power,” American Journal of Sociology 110, no. 6 (2005): 1651–83CrossRefGoogle Scholar. For despotic power, see Charles Tilly, “War Making and State Making as Organized Crime,” in Bringing The State Back In, eds. Peter B. Evans, Dietrich Rueschemeyer and Theda Skocpol (Cambridge: Cambridge University Press, 1985), 169–91.
12 Edelman, Lauren B., Leachman, Gwendolyn and McAdam, Doug, “On Law, Organizations, and Social Movements,” Annual Review of Law and Social Science 6, no. 1 (2010): 653–85CrossRefGoogle Scholar.
13 Xu, Xiaoqun, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901–1937 (Stanford: Stanford University Press, 2008), 7Google Scholar.
14 According to John Fitzgerald, these cultural movements mostly provided new terminology for use by social activists and revolutionaries in discussing progress and liberalism and rejecting Confucianism. To the best of our knowledge, none of the cases we reviewed involved a direct refutation of filial piety as being feudal and outdated, a viewpoint often voiced by contemporary social activists in the late Qing and the Republic. Nevertheless, new terminology with its roots in individualism and equality developed in parallel with new variants of filial piety, as can be seen in processes II and III. Fitzgerald, John, Awakening China: Politics, Culture, and Class in the Nationalist Revolution (Stanford: Stanford University Press, 1996), 153–54CrossRefGoogle Scholar.
15 Jiangjin xianzhi, 602.
16 Du, State and Family in China, 144; Huang, Philip C. C., Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (Stanford: Stanford University Press, 2001), 18–30Google Scholar.
17 For more on filial piety and criminal justice in the Qing dynasty, see Du, State and Family in China, 197; Mühlhahn, Criminal Justice in China, 25.
18 Jiangjin J007-0025-00154, 24–27.
19 Ibid.
20 Yunsheng Xue, A Typeset Edition of the Tu-Li Ts'un-i, ed. Tsing-chia Huang (Taibei: Chengwen chubanshe, 1970), 1015–18, as cited in Du, State and Family in China, 34.
21 Qu, Zhongguo falü yu Zhongguo shehui, 13–17; Du, State and Family in China, 33–48, 60–66; Mühlhahn, Criminal Justice in China, 51.
22 Jiangjin J007-0025-00154, 24–27. Local collective neighborhood organizations and lineages were informal dispute-resolution institutions. During the Qing era, magistrates often referred disputes to these informal institutions to teach common people morality according to the Confucian model.
23 Jiangjin J007-0025-00154, 22–31.
24 Huang, Civil Justice in China, 135–37.
25 Ibid., 1–2, 110–16.
26 The Analects of Confucius, trans. Burton Watson (New York: Columbia University Press, 2007), 82.
27 Du, State and Family in China, 17.
28 The Canon of Filial Piety, trans. Paul R. Goldin, in Hawaii Reader in Traditional Chinese Culture, eds. Victor H. Mair, Nancy S. Steinhardt and Paul R. Goldin (Honolulu: University of Hawai'i Press, 2005), 107.
29 Jiangjin J007-0025-00154, 22–27.
30 “The Provisional Constitution of the Republic of China,” trans. Peking Daily News, The American Journal of International Law 6, no. 3 (1912): 149.
31 For example, Regulations on the Organization of County Judicial Divisions (xian sifa chu zuzhi tiaoli), implemented in 1936 and revised in 1944, stipulated the qualifications for trial officers (shenpan yuan); these were the legal officials who performed the duties of judges before the establishment of formal county courts. They were expected to have either passed specialized exams for legal personnel or to have studied law for more than three years, having been awarded a diploma. See Zuixin liu fa quanshu [The Latest Compilation of Six Laws], ed. Editorial Committee of the Chinese Legal Regulations Publishing House (Shanghai: Zhongguo fagui kanxing she, 1947), 467–68.
32 Jiangjin J007-0026-00148, 5–8.
33 Ibid.
34 Huang, Code, Custom, and Legal Practice in China, 136–54.
35 The Canon of Filial Piety, 107.
36 Jiangjin J007-0026-00148, 22–24.
37 Ibid.
38 Du, State and Family in China, 193–202.
39 Min Fa [The Civil Code of the Republic of China] (1929–1930), in Zhonghua minguo fagui daquan [Compilation of Laws and Regulations of the Republic of China], ed. Baiqi Xu (Shanghai: Shangwu yinshu guan, 1936), vol. 1, Articles 1004–58, 80–82.
40 Min Fa, Article 1017, 80; see also separate property regimes in marital relations (fenbie caichan zhi), where each side may own and dispose of their individual proportion separately, Articles 1044–48, 82.
41 Jiangjin J007-0026-00148, 45–47.
42 For the stipulation concerning financial support and abandonment of one's lineal ascendants by blood, see Min Fa, Article 1117, 85; Xing Fa [The Criminal Code of the Republic of China] (1935), in Zhonghua minguo fagui daquan [Compilation of Laws and Regulations of the Republic of China], ed. Baiqi Xu (Shanghai: Shangwu yinshu guan, 1936), vol. 1, Article 294-5, 152.
43 Jiangjin J007-0026-00148, 45–47.
44 In the Qing era, changes in the interpretation of filial piety in legal practice largely resulted from changing social and political realities. As for household division in the Qing era, Qing law sanctioned sons to live separately before their parents' deaths, but because of the frequency of household division, the law incorporated a sub-statute to allow children to divide households before parental death with parental permission. See Huang, Civil Justice in China, 21–50. It was also fairly common for people involved in legal practice to adapt the Confucian ideal other than filial piety. For example, Matthew Sommer shows that wife-selling and polyandry, although prohibited by law and rejected for violating the social norm of female chastity, were not uncommon survival strategies during the Qing dynasty. For more discussion, see Matthew H. Sommer, Polyandry and Wife-Selling in Qing Dynasty China: Survival Strategies and Judicial Interventions (Berkeley: University of California Press, 2015).
45 Strauss, “The Evolution of Republican Government,” 346–47.
46 Xu, Trial of Modernity, 2.
47 Jiangjin established its county court in July 1938. See Jiangjin xianzhi, 602.
48 Judicial Administration Statistics Office, “Niandu sifa tongji, 1943,” in Minguo shiqi sifa tongji ziliao huibian [Compilation of Judicial Statistics during the Republican Era], eds. Qi Tian and Hongxia Tang (Beijing: Guojia tushu guan chubanshe, 2013), vol. 19, 339.
49 Ibid., vol. 19, 417–18, 438.
50 Jiangjin J007-0025-00532, 64.
51 Ibid.
52 Du, State and Family in China, 64–66.
53 Du, Yue, “Concubinage and Motherhood in Qing China (1644–1911): Ritual, Law, and Custodial Rights of Property,” Journal of Family History 42, no. 2 (2017): 162–83CrossRefGoogle Scholar.
54 Jiangjin J007-0025-00532, 64.
55 Ibid.
56 Jiangjin J007-0025-00468, 30–37.
57 Jiangjin J007-0025-00530, 21–24.
58 Jiangjin J007-0019-02574, 43–45.
59 We borrow “contrapuntal” from Edward Said. Said uses the term to criticize the dichotomization of metropolitan and nonmetropolitan regions, proposing a methodology that examines “intertwined and overlapping histories.” See Edward W. Said, Culture and Imperialism (New York: Knopf, 1993), 3–61.
60 Gerth, Karl, China Made: Consumer Culture and the Creation of the Nation (Cambridge: Harvard University Asia Center, 2003), 3Google Scholar.
61 Jiangjin J007-0025-00376, 6–10.
62 Ibid.
63 Zhao, Gang, “Reinventing China: Imperial Qing Ideology and the Rise of Modern Chinese National Identity in the Early Twentieth Century,” Modern China 32, no. 1 (2006): 3–30CrossRefGoogle Scholar.
64 Du, Yue, “From Dynastic State to Imperial Nation: International Law, Diplomacy, and the Conceptual Decentralization of China, 1860s–1900s,” Late Imperial China 42, no. 1 (2021): 177–220CrossRefGoogle Scholar; Du, Yue, “Sun Yat-Sen as Guofu: Competition over Nationalist Party Orthodoxy in the Second Sino–Japanese War,” Modern China 45, no. 2 (2019): 201–35CrossRefGoogle Scholar.
65 Jiangjin J007-0025-00376, 6–10.
66 Ibid.
67 Still, although emphasizing the analogy between state and parents, nationalist filial piety and Fong's filial nationalism remained distinct from premodern political loyalty by incorporating the new meaning of nationalism, as discussed in the previous paragraph. See Fong, Vanessa, “Filial Nationalism among Chinese Teenagers with Global Identities,” American Ethnologist 31, no. 4 (2004): 631–48CrossRefGoogle Scholar.
68 Although it remains debatable whether individualism was part of the ancient intellectual tradition in China, the legal individualism discussed here is specifically embedded in the Western legal tradition.
69 Joseph R. Levenson, Confucian China and Its Modern Fate: A Trilogy, 1st combined ed. (Berkeley: University of California Press, 1968), vol. 1, 100–4, 126–29.
70 Glosser, Susan L., Chinese Visions of Family and State, 1915–1953 (Berkeley: University of California Press, 2003), 9–26Google Scholar.
71 Jiangjin J007-0025-00662, 13–45.
72 Ibid., 13–17.
73 Ibid., 18–22.
74 Min Fa, Article 1117, 85.
75 Jiangjin J007-0025-00662, 33–38.
76 In this discussion, among the 104 cases we reviewed, we did not count the four strands of filial piety in the nineteen cases from before the implementation of the 1930 Civil Code, at which time synergization was not salient. Among the remaining eighty-five cases, one case may include more than one interpretation of filial piety; additionally, not all of the cases identify filial piety or involve parent–child conflicts. Of the eighty-five cases that started after the implementation of the 1930 Civil Code, forty-eight directly involve parent–child conflicts or reference filial piety.
77 Du, State and Family in China, 243–45.
78 See Said, Culture and Imperialism, 3–61.
79 See Pang Guolin v. Pang Zicheng (1937), Jiangjin J007-0025-00311, 24–27; Zheng Ruiqi v. Woman Zheng Wang (1938), Jiangjin J007-0025-00992, 34–35.
80 Cohn, Margit, “Legal Transplant Chronicles: The Evolution of Unreasonableness and Proportionality Review of the Administration in the United Kingdom,” The American Journal of Comparative Law 58, no. 3 (2010): 583–629CrossRefGoogle Scholar.