An Empire in Transition: Law, Society, Commercialization and State-Formation in Late Imperial China

Melissa Macauley. Social Power and Legal Culture: Litigation Masters in Late Imperial China (Stanford: Stanford University Press, 1998). Pp. xvii + 416. $55.00 cloth.

Bradly W. Reed. Talons and Teeth: County Clerks and Runners in the Qing Dynasty (Stanford: University Press, 2000). Pp. xxiii + 318. $55.00 cloth.

Matthew H. Sommer. Sex, Law and Society in Late Imperial China (Stanford: Stanford University Press, 2000). Pp. xvii + 413. $55.00 cloth.

In the late 1980s, a cohort of American faculty and graduate students began studies of Qing dynasty (1644-1912) law based on newly available archives. The first of the resulting dissertations are now books. Like other revisionist work on pre-Opium War China, they overturn long-standing truisms promoted by both Qing Confucians and modern western scholars, and show us a much more complex and dynamic society.

The first stereotype to fall is that ordinary Chinese feared contact with the state so much, and valued harmony so much, that they were extremely reluctant to litigate. As Melissa Macauley shows, officials faced a flood of litigation and appeals, with backlogs at every level a constant source of discussion among officials. And while litigation masters, who pursued the technically illegal trade of helping people represent themselves before magistrates, were constantly vilified in government documents and elite writings, their image in popular media, such as folk operas, was much more positive. Meanwhile, the rapid commercialization and social change of the eighteenth century, particularly emphasized by Matthew Sommer, unsettled statuses and outstripped both customary and statutory rules, further fueling the litigation boom. And while the state certainly would have preferred less litigation, it also needed some lawsuits: as Bradly Reed shows, the fees collected from litigants were absolutely essential to maintaining the hundreds of thousands of extra-statutory functionaries who allowed roughly 1,500 local magistrates to govern an empire of (by 1800) about 300,000,000. In fact, like the functionaries themselves, these fees were increasingly formalized and regulated during the nineteenth century.

While Sommer carefully charts legal changes affecting various sexual issues--rape, adultery, prostitution, homosexuality--he is less interested in the state or the law per se than in the social changes and attitudes reflected therein. As others have done, he locates the eighteenth century near the end of a centuries-long process of commercialization in China, which resulted in the abolition of almost all bound labor and formal legal inequalities. With this he sees a change away from sex as "status performance"--in which people belonging to different formal groups were expected to have different sexual natures and behaviors, so that the same laws could not be applied to all--and a process of "peasantization," in which both social and legal standards for all became more like those for ordinary commoners. Thus, for instance, in the Ming dynasty, there was a hereditary, legally distinct class of entertainers, who often included sex among their services: its origins were a matter of compulsion (often as a form of punishment), not choice, but its members were nonetheless assumed to have natures that matched their degraded roles. Since such women were by definition non-chaste, and rape was conceived above all as an attack on a woman's chastity (which was in turn the property of her father or husband), it was legally impossible to prosecute sexual assaults on such women. On the other hand, since these women had no chastity to surrender, commercializing their intrinsic promiscuity was not a crime--there were virtually no Ming or early Qing prosecutions for either prostitution or pimping of women in this class. Over time, however, the Qing erased most remaining sub-commoner status groups, extending the same protections and placing the same strictures on almost everyone. Maidservants, for example, gained some protection against their masters, and a strengthened expectation of eventually having a "normal" marriage. Meanwhile, those in...