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

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. ¹

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. ² 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.

Of course, I am aware that this discussion may be seen as in conflict with the recent trend of American scholarship, particularly with Philip Huang's books on civil law under the Qing and Republican periods. ³ Without entering at this point into details, I would like to express at the outset why I am uncomfortable with his new approach. A first reason is that Huang, and some of his collaborators, do not refer to the previous studies noted above. If some of my remarks and criticisms seem irrelevant, I would invoke for excuse that I am just trying to bridge the gap between two theses similar in substance, but very different in their arguments and approach. The main difference is as follows: while the "classic" approach searched for civil law in local customs, the recent American scholarship searches for it in judicial procedure, in "civil cases" and adjudication on "civil matters." I do not quibble about these terms, which I happen to use myself, as a convenient approximation avoiding long periphrasis. Yet my underlying reservations have been well expressed by Mark Allee:

What I will refer to throughout as civil cases were, to the Chinese courts, merely "minor matters" that were handled with procedures that differed only slightly from those used in criminal cases. A single legal system handled all cases (except those involving bureaucrats charged with administrative malfeasance). However, even though the procedures of "civil" adjudication were usually not significantly different from those of "criminal" trials, it will occasionally be convenient for the purposes of our discussion to make the distinction. ⁴

To me, the use of terms like "civil cases" or "civil procedure" in reference to imperial China necessarily demands this kind of qualification

I am not perfectly clear about how Philip Huang and some of his collaborators have felt able to jump from this cautious acceptance of "civil cases" to posit a complete system of civil law in pre-modern China, all derived from the same exclusive focus on...