Contract and Property in Early Modern China - Couverture rigide

Couverture rigide

ISBN 10 : 0804746397 ISBN 13 : 9780804746397

Editeur : Stanford University Press, 2004

Synopsis

The role of contract in early modern Chinese economic life, when acknowledged at all, is usually presented as a minor one. This volume demonstrates that contract actually played a critical role in the everyday structure of many kinds of relationships and transactions; contracts are, moreover, of enormous value to present-day scholars as transcriptions of the fine details of day-to-day economic activity.

Offering a new perspective on economic and legal institutions, particularly the closely related institutions of contract and property, in Qing and Republican China, the papers in this volume spell out how these institutions worked in specific social contexts. Drawing on recent research in far-flung archives, the contributors take as givens both the embeddedness of contract in Chinese social and economic discourse and its role in the spread of commodification. Two papers deal with broad issues: Zelin's argues for a distinctively Chinese heritage of strong property rights, and Ocko's examines the usefulness of American legal scholarship as a comparative analytic framework.

A propos du livre

À propos des auteurs

Madeleine Zelin is Professor of History and East Asian Languages and Cultures at Columbia University. Jonathan K. Ocko is Professor and Head of the Department of History at North Carolina State University, and an Adjunct Professor of Chinese Legal History at Duke Law School. Robert Gardella is professor in the Humanities Department at the United States Merchant Marine Academy.

Madeleine Zelin is Professor of History and East Asian Languages and Cultures at Columbia University. Jonathan K. Ocko is Professor and Head of the Department of History at North Carolina State University, and an Adjunct Professor of Chinese Legal History at Duke Law School. Robert Gardella is professor in the Humanities Department at the United States Merchant Marine Academy.

À propos de la quatrième de couverture

“...the eleven papers in this volume present a fascinating range of case studies and historical details on the role of contracts and property rights in Chinese conomic transactions...”— EH.NET
“This book is essential reading for scholars and graduate students interested in Chinese legal, social, and economic history.”—History: Reviews of New Books

The role of contract in early modern Chinese economic life, when acknowledged at all, is usually presented as a minor one. This volume demonstrates that contract actually played a critical role in the everyday structure of many kinds of relationships and transactions; contracts are, moreover, of enormous value to present-day scholars as transcriptions of the fine details of day-to-day economic activity.
Offering a new perspective on economic and legal institutions, particularly the closely related institutions of contract and property, in Qing and Republican China, the papers in this volume spell out how these institutions worked in specific social contexts. Drawing on recent research in far-flung archives, the contributors take as givens both the embeddedness of contract in Chinese social and economic discourse and its role in the spread of commodification. Two papers deal with broad issues: Zelin's argues for a distinctively Chinese heritage of strong property rights, and Ocko's examines the usefulness of American legal scholarship as a comparative analytic framework.

À propos de la deuxième de couverture

The role of contract in early modern Chinese economic life, when acknowledged at all, is usually presented as a minor one. This volume demonstrates that contract actually played a critical role in the everyday structure of many kinds of relationships and transactions; contracts are, moreover, of enormous value to present-day scholars as transcriptions of the fine details of day-to-day economic activity.
Offering a new perspective on economic and legal institutions, particularly the closely related institutions of contract and property, in Qing and Republican China, the papers in this volume spell out how these institutions worked in specific social contexts. Drawing on recent research in far-flung archives, the contributors take as givens both the embeddedness of contract in Chinese social and economic discourse and its role in the spread of commodification. Two papers deal with broad issues: Zelin's argues for a distinctively Chinese heritage of strong property rights, and Ocko's examines the usefulness of American legal scholarship as a comparative analytic framework.

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Contract and Property in Early Modern China

STANFORD UNIVERSITY PRESS

Copyright © 2004 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-4639-7

Contents

List of Tables and Figures.......................................................................................................................................................viiIntroduction MADELEINE ZELIN, JONATHAN OCKO, ROBERT GARDELLA....................................................................................................................1Part 1. Contract and the Establishment of Property Rights1. A Critique of Rights of Property in Prewar China MADELEINE ZELIN.............................................................................................................172. Writs of Passage in Late Imperial China: The Documentation of Practical Understandings in Minong, Taiwan MYRON L. COHEN......................................................373. Litigation, Legitimacy, and Lethal Violence: Why County Courts Failed to Prevent Violent Disputes over Property in Eighteenth-Century China THOMAS BUOYE.....................944. Property, Taxes, and State Protection of Rights ANNE OSBORNE.................................................................................................................1205. The Status of Contracts in Nineteenth-Century Chinese Courts MARK A. ALLEE...................................................................................................1596. The Missing Metaphor: Applying Western Legal Scholarship to the Study of Contract and Property in Early Modern China JONATHAN OCKO...........................................178Part 2. Contract and the Practice of Business7. Supplemental Payment in Urban Property Contracts in Mid to Late Qing Shanghai FENG SHAOTING..................................................................................2098. Managing Multiple Ownership at the Zigong Salt Yard MADELEINE ZELIN..........................................................................................................2309. Custom, the Code, and Legal Practice: The Contracts of Changlu Salt Merchants in Late Imperial China MAN BUN KWAN............................................................26910. Companies in Debt: Financial Arrangements in the Textile Industry in the Lower Yangzi Delta, 1895-1937 TOMOKO SHIROYAMA.....................................................29811. Contracting Business Partnerships in Late Qing and Republican China: Paradigms and Patterns ROBERT GARDELLA.................................................................327Chinese Names and Terms..........................................................................................................................................................349Bibliography.....................................................................................................................................................................359List of Contributors.............................................................................................................................................................379Index............................................................................................................................................................................381

Chapter One

A Critique of Rights of Property in Prewar China

The penal emphasis of [Chinese] law, for example, meant that matters of a civil nature were either ignored by it entirely (for example, contracts) or were given only limited treatment within its penal format (for example, property rights, inheritance, marriage).... What really concerned the law-though this is to be surmised rather than explicitly read in the Chinese legal literature-were all acts of moral or ritual impropriety or of criminal violence which seemed in Chinese eyes to be violations or disruptions of the total social order.... When this law appeared, however, it was used neither to uphold traditional religious values nor to protect private property. Rather, its primary purpose was political. Bodde and Morris 1967

The history of China's use of contracts is a long one. Its beginnings were probably in primitive times. Today the oldest surviving contract for which we have a text we can verify, for which there is an actual object to investigate, is a bronze inscription from the Western Zhou. After the Western Han this kind of material is found in every period. Zhang Chuanxi 1995

HOW DO WE reconcile these two snapshots of Chinese legal culture?-one in which the law of the state, and by extension its agents in the field, pays only glancing attention to the economic relationships that exist between individuals; and one in which written agreements between individuals play a major, if not dominant, role in those same transactions. One solution would be to assume that private justice prevailed in the economic realm, and some scholars have taken that approach to Chinese legal history. In his pathbreaking work on Chinese customary law, Liang Zhiping (1996) argues that the virtual disappearance of state-owned land in the late imperial period encouraged a laissez-faire attitude toward private transactions that resulted in the elaboration of a rich and diverse body of customary practices in the Chinese countryside. These customs, many of which are documented in the early-twentieth-century survey published as Zhongguo minshang shi xiguan diaocha baogao lu (A record of a report on Chinese customs relating to civil and commercial affairs), are seen as taking the place of civil law, but leading to a multiplicity of practices in matters relating to property. If indeed the state remained detached in such matters, declining to set the rules of the game and encouraging disputants to seek justice elsewhere, particularly through guild, lineage, or village mediation, then it would be difficult to speak of rights of property except as a highly localized phenomenon. Such a fragmented and fickle property regime could hardly form the basis of a large-scale commercial economy, much less encourage industrial investment.

This approach was far easier to accept when scholars like Bodde and Morris were writing. Access to the records of magistrates, the lowest-level officials within the Qing bureaucracy, and the officers charged with handling all matters of a legal nature at the local level was limited. During the period between the fall of the Qing and the Communist victory in 1949, the quest for modernity turned most scholars' attention away from the activities of imperial local officials. Indeed, almost anything related to the imperial bureaucracy was tainted with the brand "feudalism" and assumed to present few lessons for Republican Chinese. Archival research of this kind was even more difficult during the second half of the twentieth century. It is not surprising, therefore, that most work on Chinese law relied on codified law, administrative regulations, and a small number of official memoirs, handbooks, and so on.

Since the early 1980s, the opportunity to examine property rights in action, particularly through the lawsuits brought to a magistrate's yamen in the late Qing and early Republic, provides an alternative solution to our dilemma. No one who has spent time exploring the documents of a Qing county yamen could come away assuming that the state was of marginal importance in the process of establishing property rights. Whether the state assumed the role of adjudicator by choice or had that role thrust upon it, county magistrates everywhere were in undated with litigation of an economic nature. That this large body of case law was not collected as precedent for judicial decision making does not mean that the state did not play a role in the establishment of the economic rules of the game and in their enforcement.

This chapter is concerned with the construction and consequences of these rules of the game as they pertain to rights of property in late imperial China. It suggests that China was a society in which the rights of property were well defined, although their cultural construction was quite different from that embodied in the classical Western construction of individual private property. It also suggests that the state played an important although not exclusive role in the enforcement of those rights. It examines the role that contract played in the establishment, transfer, and enforcement of property rights. It argues that the extensive use of contracts at all levels of society and the sanctity accorded the writing compensated for the paucity of positive law with regard to rights of property and at the same time injected a degree of flexibility and predictability into property transactions. Finally, it poses some hypotheses about the economic consequences of this property regime for the development of Chinese business.

The Statutory Basis for Rights of Property

Recognition of Rights of Property

A widely held misconception about prewar China is that except in the foreign sector it had no private property. This fallacy arises from two assumptions. The first is that private property can exist only in the form familiar in modern Western Europe, that is, vested in the individual, who is endowed with absolute rights of use and disposal. The other is that Chinese law, both formal and customary, was the embodiment of Confucian morality, founded on particularistic distinctions that made impossible the impersonal, impartial, and universal as they pertained to economic as well as social transactions. As a result, exchange relationships in China remained personal, and the scope of exchange and investment remained relatively narrow. How accurately does this reflect Chinese realities?

Even a cursory examination of China's late imperial codes demonstrates explicit acknowledgment of and support for a private property regime. The state's interest in protecting property rights and avoiding the disputes that can arise from poorly defined property rights is first demonstrated in the inclusion in the imperial codes of surprisingly detailed rules on inheritance. Of the greatest significance to the economic historian is the statute stating that all legitimate sons shall inherit an equal share of the father's estate (Statute 88-1). This statute also deals with the share of a brother who has died (his sons inherit his share) and gives illegitimate sons half the inheritance of a legitimate son. The imperial code also establishes the inheritance rights of women. In the Qing, this included stipulations that daughters can inherit if there are no sons and no male members of the same lineage to be appointed heir, that widows can act as surrogate inheritors for their male offspring, and that a widow may inherit her husband's estate if she does not remarry (Wakefield 1998: 88). What the Code does not reveal is that the unit to which property adhered in China was not the individual but the household (jia).

The most powerful evidence for the existence of strong rights of property lies in the imperial statutes relating to theft. From the Tang period on, theft of property is treated as a major crime and defined very broadly. Among the crimes of theft delineated in the Qing Code are sale or alienation of other people's goods, crops, or livestock; sale or retention of real or movable property entrusted to you by others; retention without compensation of items that are the result of the labor of others; and sale of ancestral land or temples by sons or grandsons. Of these, the last two are of particular interest to legal historians. The prohibition against retention without compensation of items that are the result of the labor of others contains as illustration the confiscation of grass, kindling, and so on that someone has gathered from an uncultivated area. While easily written off as evidence of China's largely agrarian orientation (along with the separate substatutes against theft of grain, fruit, and vegetables), this statute (271) directly addresses the issue of the derivation of property rights. Taken alone it is insufficient evidence of a Lockean theory of property. However, taken together with evidence from other domains, it raises some interesting questions. As Anne Osborne's essay (Chapter 4) in this volume illustrates, some of the most fruitful areas for exploration of this issue may be in the treatment of abandoned land and "virgin land." In both cases, he who has added value to the land is seen as having established a right in it, although in the case of abandoned land this may only be a right to compensation for value added (Zelin 1994: 271-73). This principle was incorporated in Article 954 of the Republican Civil Code. In the case of "virgin land," there is strong evidence of a Chinese version of "manifest destiny," which justified the Han occupation of aboriginal lands on the grounds of more productive use. It was also common for land grabbers who failed to cultivate their stake to lose their rights by virtue of failure to improve the land (Guo 1980: 117).

The ban on the sale of ancestral or temple lands by sons or grandsons raises a different set of questions of equal importance in evaluating private property within the Chinese context. The ban provides the only hint in the imperial code of the social reality that rights of property in China, with the exception of those established with the creation of a woman's dowry, were vested not in the individual, but in the household. While not stated in these terms, it recognizes the potential conflicts of interest inherent in such a property regime and therefore attempts to establish only one authority over the disposal of such rights.

Qualifications of Rights of Property in the Law

The traditional Chinese understanding of the relationship between the state and the people can be described as one of state paternalism. Both in the vocabulary of statecraft and in the responsibilities assigned the state, one finds a strong belief in the state's superior ability to determine and arrange what is best for the people. This is reflected in the dynasty's duties toward the moral transformation of the people, as well as the state's obligations to protect the people's livelihood (minsheng). One might then reasonably expect the imperial code and customary practice to limit in significant ways the ability of people to use and dispose of their property.

In fact, the codified law of the late imperial state is a remarkably laissez-faire document. This is not a reflection of the state's lack of interest in the market. The Code stipulates the qualifications for and licensing of brokers (Statute 152) and calls for the standardization of weights and measures (Statute 155). It also bans the sale of inferior and defective goods (Statute 156). However, the overall thrust of the statutes pertaining to the market is addressed at maintaining its openness. The state makes no effort to regulate the disposal of labor, although it does attempt to clarify the distinctions between free and slave labor and long- and short-term labor (Huang 1985: 88). The main focus of the statutes with relation to the market deal with the maintenance of fair price. Benefiting from unfair prices is equated with theft, and the Tang, Ming, and Qing Codes have rules against monopolizing the market in order to force higher prices for inferior goods or buy goods for lower than market prices (Statute 154). In addition, eighteenth-century substatutes specifically prohibit Manchu nobility and officials from monopolizing markets and require officials to pay market prices for goods (154-4).

The one area in which the state was specifically authorized to intervene in the free-will transactions of the people was in the realm of debt. Debt is one of the few areas of civil law in which the Code specifically assigns responsibility for adjudication to the state. Likewise, the state specifically takes responsibility for punishing those who do not pay their debts. Whereas the Code calls for brokers to ensure fair prices in the marketplace, the state takes responsibility for setting fair interest rates (Statute 149). From the Ming on, this was considered to be around 3 percent per month.

Enforcement of Rights of Property

The Code provides little insight into the protection of property rights. However, it does contain a number of statutes relating to the sale of land and buildings which provide a clue to the state's understanding of the enforceability of rights of property. Most of these statutes refer to state requirements that land transactions be registered. In the Qing, form deeds were to be used, supplied by the provincial government. A large part of the Code section on land (Statute 95) also deals with the definition of sale and conditional sale and attempts to radically circumscribe the rights of those who alienated land conditionally.

The mainstream view that China had no civil law is in part derived from the nature of Code provisions referring to land. It is assumed that the only reason for the inclusion of this important area of civil legislation in a code largely devoted to penal concerns is the state's desire to register land in order to tax it. While the state was concerned with taxation, it was equally concerned with preventing litigation. Although it is not enormously successful in either area, a main purpose of this section of the Code is to establish a standard of evidence for the verification of ownership. This was the written contract. The importance of written contracts in China grows out of popular practices and is finally written into the Code in 1767 (Jing 1994: 71).

Implications of the Statute Evidence

First, the imperial statutes described above tell us that the state recognizes rights of private property, and in the cases of inheritance, conditional sale, and a limited number of other things, it takes upon itself the role of codifying customary practices.

Second, the statutes indicate that the state seeks through the magistrates' courts to lessen the socially disruptive impact of property disputes by (1) taking responsibility to adjudicate debt disputes, the single greatest cause of violent disputes in China; (2) using its powers to register land to lessen the incidence of land disputes; and (3) in a limited way, ensuring the smooth workings of the marketplace, and most important, recognizing the necessity of the market.

However, while the state refuses to interfere in most transactions, it does mark out an arena in which it is responsible to protect the greater good. This includes making certain that interest rates are not onerous, the weak are not exploited (by codification of inheritance rules relating to women and children),7 and prices in the marketplace are not skewed by monopolists and hoarders (similar to the state responsibility to regulate prices by maintaining ever normal granaries). The Code also tells us that although the state did not set standards for business behavior or regulate the content of most kinds of agreements, it did recognize its responsibility to uphold agreements. And in addition, it sanctifies, so to speak, the role of written agreements in the handling of such disputes.

Evidence from Legal Practice

The Contract

In China we do not have a body of legal theory that can illuminate the process by which a legal system designed to secure customary rights of inheritance and largely rural-based property evolved to deal with an increasingly complex commercial and manufacturing sector. Nor do we have, before the establishment of the Daliyuan in 1906, a central clearinghouse for the formulation of legal precedent in anything other than capital cases. However, an examination of contracts themselves and the disputes handled by lower courts can give us a sense of the legal and economic implications of China's property rights regime and the widespread use of written contracts as a means to establish rights of property.

(Continues...)

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Détails de l'édition

• Éditeur: Stanford University Press
• Date d'édition: 2004
• Langue: anglais
• ISBN 10: 0804746397
• ISBN 13: 9780804746397
• Reliure: Relié
• Nombre de pages: 400
• Éditeur: Zelin Madeleine, Ocko Jonathan K., Gardella Robert
• Coordonnées du fabricant: non disponible
• Personne responsable: non disponible