Women and Property in China, 960-1949 (review)

Since the 1990s there has been a marked resurgence of interest among Western scholars in the legal history of China as well as the issues of inheritance and property rights. Most of the earlier studies, which were based primarily on legal codes, model court cases, and administrative handbooks, informed us more about how the legal system should have worked than about how it actually did work in practice. Since the opening of Qing and Republican period legal archives, scholars have been able to examine not only how the judicial system worked in practice but also how state and society interacted with one another. This archival research is significantly altering our understanding of late imperial China's social and legal structures (Park and Antony 1993).

Kathryn Bernhardt's Women and Property in China, 960-1949, which appears in the series edited by Philip C. C. Huang and herself, "Law, Society, and Culture in China," is an important contribution to the new legal history. Taking the long view of history, this book challenges much of the previous scholarship on the property and inheritance rights of daughters and widows from the Song dynasty to the founding of the People's Republic of China. Bernhardt joins a growing number of other scholars whose studies have focused on women and law (Ocko 1990; Allee 1994; Sommer 1996; Huang 1996 and 2001; Antony 1997; Birge 2002). What these studies show is that many women, especially widows, turned to the courts for help in solving disputes over marriage, inheritance, and property rights. Conventional wisdom would have us believe that women were submissive and dependent on the male members of the family; nevertheless the majority of the lawsuits instigated by women occurred within the family and concerned conflicts over property. Some women obviously took advantage of the legal system to demand what they considered to be their rightful share of family wealth. For women, going to court was, in the words of Melissa Macauley, an act of "social empowerment" denoting their disregard for the social conventions and authority of their community (Macauley 1998, p. 147). Studies by Bernhardt and others offer us new perspectives for viewing gender relationships in late imperial China—women were not merely victims or pawns but were capable of exercising significant choices in how they wanted to live their lives.

After a detailed and sometimes scathing assessment of Japanese scholarship on Song dynasty inheritance laws and practices, Bernhardt examines the major changes in women's legal rights to property. By shifting the focus away from men to women, the author challenges the conventional view that property inheritance in late imperial and Republican China was static. Indeed, taking the woman's perspective is significant. As the author puts it at the end of her book: "The women's story, then, is not just about women, but about rethinking the subject of inheritance as a whole" (p. 199). Through an impressive and careful examination of hundreds of laws and court-case records over the past thousand years she shows that most litigation over inheritance did not involve household division but rather patrilineal succession. By looking at property from the view of women—as daughters, wives, and concubines—she convincingly demonstrates that household division and patrilineal succession were separate and dynamic historical processes. While the division of household property among direct male heirs was quite routine, questions over patrilineal succession in cases when a man died without a male heir resulted in numerous legal disputes.

According to Bernhardt, the first significant change came in the early Ming dynasty when the government enacted a new law requiring "mandatory nephew succession," whereby all sonless families had to establish a lineage nephew as the patrilineal heir. Because daughters and widows could no longer select the heir, in practice this law meant that women's property claims became severely restricted. By the late Ming and early Qing, however...