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Gender Studies Workshop: Gender, Family, and Law
April 22, 2022 @ 10:00 am – 1:00 pm
Bettine Birge, Professor of East Asian Languages and Cultures, University of Southern California
Ying Zhang, Associate Professor and Director of the Institute for Chinese Studies, The Ohio State University
Mara Yue Du, Assistant Professor and Himan Brown Faculty Fellow, Cornell Univeristy
Xiaoping Cong, Professor of History, University of Houston
Michael Szonyi, Frank Wen-Hsiung Wu Memorial Professor of Chinese History and Director, Fairbank Center for Chinese Studies, Harvard University
Man Xu, Associate Professor of History, Tufts University
Wai-yee Li, 1879 Professor of Chinese Literature, Harvard University
Catherine Vance Yeh, Professor of Chinese and Comparative Literature, Boston University
Eileen Chow, Associate Professor of the Practice of Asian and Middle Eastern Studies, Duke University
Conflict and Accommodation: Confucian family values and legal practice under the Mongol-Yuan (1260-1368)
Bettine Birge, University of Southern California
Feminist history has long established that gender relations are inherently unstable, always contested, and constantly changing. By contrast, the purported basis of the traditional Chinese legal system, from at least the Tang on, was a system of ethical relations and gender privilege, which its Confucian architects claimed was natural and unchanging, in accord with the constant Way of Heaven. Challenges to and changes in the gender system happened in every period of Chinese history, but during the Mongol-Yuan dynasty, these were particularly salient.
The Mongol conquest and occupation of China presented a major challenge to Confucian ideas of gender relations and moreover created a system of legal pluralism that was incompatible with Confucian ideas of law based on timeless values. Despite the exhortations of Chinese advisors and several attempts, no Yuan emperor ever issued a formal law code. This left local judges without clear laws to follow, which resulted in various forms of accommodation, often at odds with traditional legal codes and Confucian dictates of gender hierarchy.
In my paper, I will look at judicial practice under the Mongols to investigate how this fundamental dilemma played itself out in different settings. I will explore the varied ramifications of this process as seen in the adjudication of disputes over issues such as prenuptial contracts, uxorilocal marriage, and personal autonomy. We find that amidst considerable instability and ferment, new ideas and accommodations emerged, and new forms of gender privilege were established, some of which endured past the Yuan dynasty.
Taking Women Seriously, Taking Legal History Seriously
Ying Zhang, Ohio State University
This paper examines the public actions taken by women in response to the imprisonment of officials in the Ming Dynasty. I argue that studying officials’ jail time accurately, as part of the regular investigative procedure rather than merely a form of political punishment, sheds new light on the legal agency of women in Ming officials’ households. Women’s legal agency, in turn, reveals some interesting pattern in the practice of Ming administrative law. “Taking women seriously” allows us to read traditional moral-political narratives as important legal history sources. With a few case studies, I also raise questions about the conventional understanding of “private women” in elite households.
Relational Power and the Logic of Inter-Personal Relations in Late Imperial Chinese Law
Mara Yue Du, Cornell Univeristy
This article provides a theoretical reflection on the logic through which ritually defined family relationships dictated legal regulation of people’s behavior in late imperial China. When discussing the intertwining of family and traditional Chinese law, existing scholarship mainly focuses on a person’s status in the kinship as defined by differential legal treatment of people of different genders and generations. This study instead highlights how the bond one actor had, or did not have, relative to another determined the allocation of responsibility and power between them, the nature and cause of actions, as well as punishment of offenses in any given circumstance. The relative relational power between two parties involved in a legal case was legally more important than a person’s status in his/her household. This article starts from a discussion of the distinction between unbreachable relationships established through blood ties and conditional relationships established through marriage or adoption. It then moves on to a comparison of three principles that defined Chinese family hierarchies—generation, age, and gender—with the former two prioritized over the third one except in marital/sexual relationships. The complex legal assessment of senior women’s agency and criminal liability is then explored, enabling us to revisit such concepts as women’s “trice following” of men and to revise theoretical frameworks on Chinese family history which was fixated on women’s relative status to men.
Law and Women’s Liberation in Revolutionary China
Xiaoping Cong, University of Houston
This paper investigates a critical aspect in the Chinese revolution which is the role of law and legal practice in the realization of women’s liberation. The author demonstrates how the revolutionary legislature concretized the idea of women’s liberation and women’s rights in both law terms and legal practice. The paper focuses on the marriage reform in the Shaanxi-Gansu-Ningxia Border Region where in the 1940s the revolutionary government and legislatures not only actively pushed the promulgation of the Marriage Regulations, but also sought an effective solution for improving women’s lives and position in family and society. In the legal practice, the court established “self-determined marriage” as new principle for marriage reform. Based on this principle the court granted women individual legal personalhood and recognized a woman’s choice in legal adjudication. This practice subverted a long-term tradition in China which saw marriage as a family practice rather than an individual’s matter. Through revision of legal terms, the court further restrained patriarchal power, which was defined “the third party” in marriage and had no right to intervene women’s marriage. It was this revolutionary practice that helped a woman to distinct her interest from that of her parents and her family, thus gradually liberated women from the domination of patriarchal family. Furthermore, the judges also developed a series of special investigation strategy and court technics that helped women to express their wills and secured their rights in self-determined marriage.