Journal of Interdisciplinary History 32.1 (2001) 160-162
Women and Property in China, 960-1949
Women and Property in China, 960 -- 1949. By Kathryn Bernhardt (Stanford, Stanford University Press, 1999) 236 pp. $45.00
Property rights, particularly inheritance rights, are the key to understanding the legal position of women in history. Using recently available archival records, in addition to legal codes and published collections of cases, to examine the sometimes ambiguous or contradictory evidence, Bernhardt constructs a history of women's inheritance rights in China from the Song dynasty through the Republican period that challenges, modifies, or confirms the previous scholarship on this subject, and provides a coherent and convincing new chronology.
The older view of Chinese legal history held that inheritance rights were fundamentally static throughout the late imperial period. Bernhardt's basic message, however, is that the situation for women clearly changed when understood in two contexts -- household division and what she calls "patrilineal succession." Household division was the normal pattern during Chinese imperial times. Upon the death of a father, property was divided equally among the sons after some provision was made for the widow's support and for the dowries of any unmarried daughters (49).
Bernhardt acknowledges that this practice persisted from the Song through the Qing (ending in 1911). The focus of her analysis, however, is on the death of a man with no sons -- a scenario that she terms "patrilineal succession." In such cases, which she estimates to have occurred about 20 percent of the time and to have accounted for about 80 percent of the inheritance disputes that she studied, the law changed significantly from the Song to the Qing, affecting many women either as surviving unmarried daughters or as widows (2 -- 3). In the Song period, a widow without sons could inherit her husband's property (59). Under certain circumstances, an unmarried daughter without brothers or a surviving mother could inherit one-half of her father's share of undivided family property (36). (Chapter One, "The Inheritance Rights of Daughters from Song through Qing," maintains that during the Song, daughters with brothers were not generally entitled to half of what their brothers received, as has sometimes been stated, though Bernhardt notes that daughters had more claims in the Song than later.) By the Ming, however, the law required sonless widows to adopt an heir, usually a nephew, thus bypassing the widow and any daughter -- a practice that Bernhardt terms "mandatory nephew succession." The widow might have had custodial rights until the nephew reached maturity. In the mid-Qing period, widows were allowed to select an heir among the nephews in the lineage. This greater latitude was bestowed by judges as a reward for a widow's "chastity," that is, her not remarrying.
In the Republican period, the civil code of 1929/30 completely overturned the premises of inheritance law, attacking both household division and patrilineal succession. Traditional concepts of kinship and property were redefined, and wives gained equal status in marriage. A concubine gained legal rights over her own offspring (they were no longer considered the children of the wife). But Bernhardt shows that the actual practices tended to circumvent the intentions of the legal reforms. De facto household division favoring sons took place before the father's death, since the law did not limit the gifts of property that he could make in his lifetime. Widowed daughters-in-law and concubines also became more vulnerable under the Westernized legal framework that did not allow for the de facto inheritance claims that they had previously "enjoyed." Bernhardt concludes, "In the end, women lost even as they gained under the Republican Civil Code" (199).
This brief description of Bernhardt's conclusions cannot do justice to her rich research and careful analysis. Suffice it to say that she has provided not only a baseline for future work in legal history and women's history, but ample material for further discussion by scholars in the field. The approach of this book is to determine what the historical realities were, not to explain causation or provide social interpretation. How, for example, should one interpret the shift in the mid-Qing toward giving chaste...