Sex, Law and Society in Late Imperial China (review)

Sex in China has been understood in terms of more or less explicit Western paradigms. Writers have underlined the stability of legal and moral principles affecting sexual behavior before the 20th century’s significant movements toward liberation; some have noted growing repressiveness in the late imperial period, attributing it to the Qing (1644–1911) revulsion for the decadent Ming (1368–1644) practice. This important work in social, sexual and legal history, based heavily on archives in Beijing and Sichuan province, thoroughly revises these received views.

In general, Chinese law focused on sexual intercourse out of place, which had cultural connotations of social disorder and political danger. Marriage involved submission to family duty; sex outside it could disrupt the descent order in a man’s lineage. Marriage without paternal consent therefore constituted illicit sexual intercourse, and penalties for wife sale and adultery were severe, as also for rape, which was treated as polluting for the woman. There are departures from Western expectations for which Professor Sommer offers plausible explanations. Lesbianism, for example, was never criminalized because it involved no threat from unattached males to the family or the wider social order, and also no illicit penetration with its connotations of danger. Prostitution was never punished more severely than adultery, illicit sex being more troubling than sex as commerce. The modern notion of marital rape was inconceivable as a legal concept, because marriage was based on an agreement between families rather than individual consent.

Beyond such constants of Chinese law, Sommer devotes his attention to the dynamic interaction of law with social change. Courtroom testimony reveals a Hobbesian world sharply at variance with standard accounts of an increasingly Confucianized society. The law, of course, was conservative, but much less than it seemed, because memorials and resulting edicts continually added substatutes, often to very indirectly relevant statutes. Moreover some substatutes left on the books ceased to be applied. There were times of broad-ranging new legislation, the most important of which, in a surprising re-periodization, Sommer discovers in the Yongzheng reign (1723–35). Reform of the laws concerning sexuality, he argues, was prompted by the spectre of a disintegrating peasant family and of innumerable peasant males lacking ties to family or place. In the usual way (imperially-promulgated substatutes based on particular cases from the provinces), older legal assumptions based on status-based morality were steadily replaced by universal standards, increasing state control but not individual freedoms. Rape law was extended to protect females in peasant families victimized by the rogue males, and its penalties made more severe (Ch. 3). The law on sodomy had been missing in earlier codes designed for a more aristocratic society, because penetration, Sommer suspects, was “something that one did to one’s servants and slaves as a pastime” (p. 309). Henceforth the object of sodomy prosecution was understood to be the “rogue male,” an unattached man menacing the integrity of peasant families (Ch. 4). Chaste widows were protected with severer penalties against forced remarriage and consequent property seizure (Ch. 5). Prostitutes and pimps had been leniently treated as a members of a status group, and occupied a grey area of toleration irrespective of status (Ch. 6); but starting from the 1720s sex work was criminalized as a threat to chaste women and the social order in general (Ch. 7). Sommer does not claim that the new substatutes restored social stability (they could not in a century of growing population and mobility), but he shows that until late in the dynasty they affected the contexts in which ordinary folk and judicial officials made their decisions.

Within these topical chapters there is a wealth of social detail from the archives. One of many vivid cases tells the unhappy story of the heirs of a well-off landowner—his son and concubine. For several years they co-reside through bitter legal disputes to maintain their respective claims, struggling to present the face of filial son and chaste...