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Reviewed by:
  • Contract and Property in Early Modern China
  • William T. Rowe
Madeleine Zelin, Jonathan K. Ocko, and Robert Gardella, eds. Contract and Property in Early Modern China. Stanford, Calif.: Stanford University Press, 2004. vii + 398 pp. ISBN 0-8047-4639-7, $65.00.

In 1887 the Journal of the Royal Asiatic Society—China Branch sponsored a symposium on "Chinese partnerships," in which a number of eminent China hands such as E. H. Parker and Chaloner Alabaster shared their long experience with the subject. The discussants agreed, among other things, that liability for debts of the firm was enforceable in Chinese courts, that this liability was shared among the partners according to their contractually determined shares in the business, and that a contractually designated "managing partner" normally would be liable for a greater percentage share of the debt if his failed performance was deemed by the court to be a factor in the firm's insolvency (JRAS-CB,new series, vol. 22, no. 1). The vital role of contract, of legally enforceable property rights and obligations, and of business firms with highly sophisticated internal structures was thus well understood by foreign players in the late Qing economy. Nevertheless, the dominant assumption in Western academic study of China has long been that such things simply did not exist: if the progress of any society was inevitably one from 'status' to 'contract,' China's lack could be patronizingly cited in support of arguments for its inability to enjoy economic development without Western (or Japanese) protective guidance.

Discovery of the millions of surviving contractual documents from the Qing period (and indeed much earlier) has only gradually given the lie to this assumption. For me, a series of articles written in the late 1970s by the legal historian Fu-mei Chang Chen and the economist Ramon Myers on "Customary Law and the Economic Growth of [End Page 712] China" (Ch'ing-shih wen-t'i, vol. 3, no. 5 and no. 10), based on close reading of dozens of such contracts, provided the shock of enlightenment. Since then, the work of such scholars as Yang Guozhen, Myron Cohen, Philip Huang, and Valerie Hansen has steadily reinforced our awareness of just how central written contracts were in the Chinese conduct of social and economic transactions, not only among strangers but also among the closest of neighbors and kin. This new conference volume is a highly welcome addition to the revisionist literature, and it should serve for scholars of the Qing and Republican periods as the standard authority on this important subject for many years to come.

With minor exceptions, the ten contributors to this volume are in unison in their depiction of the role of contracts. Written "documents of declaration" were used by all elements of late imperial society to cover a nearly infinite variety of transactions and agreements. While the state provided official contract forms, sealed in red, more often people chose to substitute their own nonofficial forms in order to escape official entanglements. Even these "white" contracts, however, were usually enforceable in government courts, and few Qing magistrates would reach any verdict without first demanding to see the entire documentary record on the case at hand. But the limited enforcement mechanisms at the state's disposal meant that contracts remained more importantly social than legal documents. Popular faith in such documents was such that the first response when one signatory defaulted on his obligations was often simply to draw up a new contract, reflecting newly recognized realities.

Though no articulated concept of 'rights' existed prior to its importation from the West, the contributors here agree that property rights certainly did exist in fact during the Qing. The chief difference between China and the West was that these rights inhered not in the individual but almost always in the family (jia). This, among other factors, led to disputes, in which one family member might contest or seek to reclaim property that had been contractually alienated by another. The Qing state grew increasingly impatient with this over time and thus sought to harden property rights, in part through legislation but, more important, through adjudication practice.

A particularly suggestive argument presented throughout this book is for...

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