Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (review)

Philip Huang's Code, Custom and Legal Practice in China adds an emphatic coda to his earlier work in the monograph edited by himself and Katherine Bernhardt, Civil Law in Qing and Republican China (Stanford University Press, 1994) and his award winning book Civil Justice in China: Representation and Practice in the Qing (Stanford, 1996). Originally intended as the second of three volumes on the legal practices of the Qing, the Republic, and People's Republic, this is a dense but often vibrant account of the Qing and Republican codes using the legal intricacies of each to "clarify the explicit and implicit logics of the peasant society and economy of the Qing, and vice versa" (p. vii). Drawing from nearly nine-hundred cases in the Qing and Republican periods, Huang's latest work brings into sharp relief the tension between legal principles and traditional customs, linking the imperial and Guomindang rule in ways that few mainstream studies have fully acknowledged. The lack of modern Western parallels to (and often the existence of only semi-comprehensible translations for) the variety of legal and cultural categories encountered in the three-century span covered here makes this most recent addition to the social and cultural study of Chinese law especially welcome.

In the first part of the book, Huang probes the theoretical intent and evolution of the law codes from the mid-seventeenth to the mid-twentieth centuries. As a result, the reader is provided with a succinct epistemologically grounded understanding of both the Qing and Guomindang codes. The monograph provides a significant corrective by forcefully rejecting the commonly—and falsely—held assertion that the Qing code was by and large penal with little consideration given to civil concerns (p. 23). As Huang demonstrates using archival case records, roughly one-third of a magistrate's total caseload consisted of civil cases. Although the Qing code was nominally concerned with enforcing regulations, from the standpoint of a Qing subject the courts served as the legal avenue to resolve, enforce, and protect an individual's claims. The practical effect of this was that it greatly aided the "creation" of civil law in the early Republic.

In the second part of the volume (occupying six of the nine substantive chapters), the narrative centers on two themes: land ownership and the agency of women. These two categories serve as a foil for the author's larger purpose to examine the "the implicit logics underlying Chinese customary practices of the Qing" (p. 207) and the "'local knowledge' of Republican China's legal modernization" (p. 211). Tacking back and forth between actual case studies and meticulous explication of the legal interpretation of the codes, Huang's analysis lays bare the cultural and local assumptions behind the customary legal conventions.

While the book is evenly written and presented, Huang's discussion of conditional sale (dian) and topsoil ownership (yongdian) should be mandatory reading for any student of China's border regions, rural life, or property rights, where land disputes were a near-constant element of local society. Of the two, conditional sales are perhaps the most misunderstood category of land ownership in the late imperial period. Falling somewhere between outright ownership and renting in the modern spectrum of property rights, dian was "above all a conditional sale subject to redemption" (p. 72). Any land in a sale where it was not spelled out that the sale was final and irrevocable was considered to be redeemable at some future but unspecified date. If the original owner of land dian-ed wanted to redeem his land, in some cases generations later, he was still only required to pay the original dian price. Conversely, if the dian holder wished to purchase the land outright he would have to "pay the difference between the original dian price and the current market price" (p...