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The Gendered Body in the Qing Courtroom
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This article presents a variety of court cases, including homicides and marriage disputes, from eighteenth- and nineteenth-century China in which magistrates scrutinized bodies for evidence about gender performance. In order to judge these cases properly, magistrates needed to find out whether the persons under scrutiny were physically capable of normative gender roles or had violated the rules governing such roles; their judgments aimed to repair kinship networks and reinforce patriarchal hierarchies. These boundary-crossing “hard cases” help us understand the complex interweaving of bodily sex and social gender in the Qing: they provide insight into how magistrates (as well as midwives and others who gave evidence) would interpret the body in terms of what society demanded of it.

For some time now it has been conventional to posit a clear distinction between sex and gender: sex is transcultural, biologically determined, and grounded in the body, whereas gender is socially and culturally constructed and therefore learned and performed according to varying scripts. As convenient as this sex/gender distinction may be, it has provoked intense debate among feminist theorists about exactly where to draw the line between them—or whether it is even possible to discern a stable, unmediated category of sex (or the body) prior to discourse.1

It seems, however, that a tentative consensus has emerged, at least among historians of gender and sexuality: while there does exist a real, physical body, it is difficult, if not impossible, to observe that body in any purely empirical or unmediated way. Thomas Laqueur’s history of the shift in Western science from a one-sex model of the body to a two-sex model is foundational for this perspective.2 The old one-sex model interpreted female reproductive organs as inverted, inferior male organs on a vertical scale of more or less realized versions of an ideal male body. In contrast, the new two-sex model clearly identified female anatomical difference, and to our modern eyes it seems far more objective than its predecessor; nevertheless, the scientists and doctors who articulated the new model argued that the female organs were the sources of feminine weakness, thereby establishing a new biological rationale for the social subordination of women. In this way, Laqueur shows that the shift in paradigms masked deeper continuities in the shaping of perception by gender ideology and in the use of scientific observation to rationalize social hierarchy. Although he does concede the existence of “the real, transcultural body,” Laqueur concludes that “sex, like being human, is contextual. Attempts to isolate it from its discursive, socially determined milieu are as doomed to failure as the philosophe’s search for a truly wild child or the modern anthropologist’s efforts to filter out the cultural so as to leave a residue of essential humanity.”3

In other words, it would be misleading to treat the body as “a biological given which emits its own meaning. It must be understood instead as an ensemble of potentialities which are given meaning only in society.”4 The historian’s challenge is not so much to discover the real body itself—which by definition is transhistorical and transcultural—but rather to explore the ways the observed body has acquired meaning in particular historical contexts.

Such meaning has a strong performative dimension, since typically the body is judged in terms of what it is expected (or forbidden) to do. This perspective is closely associated with feminist theorist Judith Butler, who argues that gender comes into existence only through its performance, and to persist it must be repeatedly performed.5 In Butler’s view, all gender performance is a kind of “drag,” because there is no real gender grounded in nature. Furthermore, the need for repetition opens up the possibility of incorrect performances—and of purposely subverting the dominant script through parody and invention. She envisions a world of radical self-determination in which there come into being as many genders as there are individuals to perform. But her theory also implies that correct performance might be reinforced and rewarded, while incorrect performance might have to be corrected and punished. Law comes into the picture as a codifier and enforcer of correct standards.

In China...



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