Law in the Mongol and Post-Mongol World: The Case of Yuan China

The historical impact of Mongols and their empires of the thirteenth and fourteenth centuries has long been dismissed. Conventional perceptions portray the Mongols as destroyers and plunderers, and until recently, scholars were usually content to pass off the Mongol conquest of Eurasia as a phenomenal aberration in history: the Islamic world was quickly re-established, Russia beat back the Golden Horde, the Ming dynasty quickly resumed China’s late imperial trends, and despite the physical and cultural destruction, Korea threw off Mongol domination and adopted Confucianism. Research over the past few decades, however, has given a more balanced picture and made strong claims for the Mongol conquests and empire as a world changing event.² Whereas less than a decade and a half prior, historians still had to ask, “did the Mongols matter?” they can now more affirmatively divulge “how Mongolia matters.”³

Law is one area that has received less attention, however. This is due largely to sources; the early Mongol empire followed an unrecorded customary law asserted by Genghis Khan—the jasaq or yasa—and the later empires often failed to codify or promulgate. Recent work on individual Eurasian empires and regions, however, has begun to show the specific developments of law and society within the various empires in the thirteenth through seventeenth centuries. Viewed comprehensively, these individual studies demonstrate a trend of legal and social change throughout Eurasia in the wake of the Mongol invasions. Broadly speaking, domestic legal codes and practices were supplanted by a newly imposed dynastic law. This development often shook local society, resulting in confusion, challenge, and tension, and leading to the elevation of a particular school of thought to mediate conflict and reinterpret tradition and social ideals in accordance with the new political order. While the particulars of each society generated individual dynamics, a general repositioning of law took place throughout the post-Mongol Eurasian world.

This essay takes up the case of one Mongol empire, Yuan China (1271–1368), and in doing so moves to highlight broader Eurasian trends. It looks at the specifics of a long-standing problem in Chinese history on women and law in China’s middle period, and Bettine Birge’s contribution to addressing this problem, especially in her new book on marriage and property law in the Yuan, Marriage and the Law in the Age of Khubilai Khan. The problem goes something like this: from approximately the twelfth to the fifteenth centuries, existing laws and practices in China were challenged and revised, old codes were abrogated, and new understandings of social and political order were imposed. One of the most reverberating changes was in gender and property relations, where wives and daughters, who had steadily gained more access to property and unilateral divorce in the Song dynasty (960–1279), were subjected to new legal restrictions in the Ming (1368–1644) and Qing dynasties (1636–1912) that gave primacy to the agnate. One of the key questions is what happened and why. Birge’s research shows that the Mongol conquest and subsequent political developments in the Yuan dynasty were instrumental in this transformation.

The rest of this review is divided into four sections. The first section examines historiographical debates and summarizes the conclusions of Birge’s arguments; it also looks at the importance of the legal text she has translated, the Yuan dianzhang 元典章, or Statutes and precedents of the Yuan dynasty (complete title, Dayuan shengzheng guochao dianzhang 大元聖政國朝典章). The second section considers the text of the Yuan dianzhang itself as a legal and social document, and questions its historical production. Section three draws on the Yuan dianzhang to explore a case of uxorilocal marriage in the early Yuan, noting the dilemma faced by jurists and illustrating interventions by the school of thought that would rise to prominence in the Yuan and Ming, the Neo-Confucians. The last section returns to the broader argument...