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  • Teaching about Chinese Women's History using Legal Sources
  • Ann Waltner (bio)

Some of the drawbacks of using legal sources in teaching about Chinese women's history are doubtless similar to drawbacks in using legal sources for any society—if you read too many legal sources, you and your students will come away convinced that murder and mayhem are the order of the day in a society which was, after all, mostly peaceful. The very different nature of the Chinese legal system from the Anglo-American legal system produces another sort of difficulty—the legal systems of the Ming (1368–1644) and Qing (1644–1911) dynasties were not interested in protecting rights, they were interested in producing order. This is a concept that is worth unpacking with students—if a status senior abused a junior (say if a father-in-law raped a daughter-in-law) the law will intervene because his acts are damaging to social or political order, not because he has violated her rights. Certain aspects of the Chinese legal system, like torture, appall modern sensibilities; it is important to work with students so that they understand that the legal system was highly articulated and committed to notions of fairness. None of these are insurmountable problems; legal sources, especially casebooks, remain one of the most valuable sources on everyday life in China, and there are now substantial materials available for classroom use.

Several recent developments in the Anglophone study of Chinese law of the Ming and Qing periods have made it clear just how rich legal sources can be for the study of women and gender in China. The opening of archives and the rediscovery of casebooks has been accompanied by translations of primary sources and increasingly sophisticated analyses of legal cases, which not only contextualize the sources in terms of the operation of the legal system but which look at them as texts which have their own kind of logic. The opening of Chinese legal archives beginning in the mid-1980s has led to a substantial rethinking of the field of Chinese legal history. This new work has led us to understand the complexities of the relationship between codified law and law in practice and has overturned some of the old stereotypes about Chinese law and society. Several of the most important recent monographs based on this new archival research, including Janet Theiss's Disgraceful Matters: The Politics of Chastity in Eighteenth-Century China (University of California Press, 2004) and Matthew Sommer's Sex, Law and Society in Late Imperial China (Stanford University Press, 2000), make it clear that courts were seen as a recourse for people who believed that they had been wronged. They also make it clear that Qing China was fraught [End Page 141] with sexual tensions and that those tensions had political dimensions. Both of these monographs are lively and provocative, and would work well in upper-division classes.

One of the most distinctive aspects of the late imperial Chinese marriage system is that while widows were not prohibited from remarrying, in the Ming and Qing dynasties they were honored by the state (with commemorative arches and tax benefits) if they did not remarry. This, at first glance, seems counterintuitive: there was a net scarcity of women in China, due both to higher female infant and childhood mortality and to upper class polygamy. This phenomenon suggests ways in which the legal system, ethical systems, and daily life were intertwined in ways that are not intuitive to the modern imagination.1

The legal codes of the Ming and Qing dynasties now both exist in reliable and readable English translations; though one would probably not want to set an ordinary undergraduate to reading the entirety of the code.2 But portions of the code that deal with property, or with mourning regulations, or with the status of concubines vis-à-vis the wife can productively be excerpted and used in classroom discussions.

More promising for classroom use are translated casebooks. An old stand-by, which still has its uses, though much of the analysis of Qing law in the introduction has come into question, is Derk Bodde and Clarence Morris's Law in Imperial China...

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