Socialist, Chinese, or Liberal? An Introduction to Chinese family law – Part 1: Traditional China

Introduction

The family has long been the fundamental unit of Chinese society, from the time of Confucius[1] to at least the late Imperial Period, and, as will be seen later in this series, well into the twenty-first century. Indeed, “As represented in Confucianism, traditional Chinese philosophy had the concept of family as its foundation.”[2] Further, since the premiership of Deng Xiaoping, there has been a renewed focus on the traditional elements of Chinese culture and their place in socialist China. This has led to many aspects of Chinese law and society being described as “socialism with Chinese characteristics”. The central position of this unique political theory has become ever clearer in the years since Deng, with Xi Jinping's official political program, as outlined to the Nineteenth National Congress of the Communist Part of China[3], titled the “Thought on Socialism with Chinese Characteristics for a New Era”. The aim of this 3-part project is to introduce Chinese family law, and in so doing, to look at the extent to which the joint influences of Socialist and Confucian thinking are present within it.

In order to work out the respective magnitudes of the different influences on the family law of the PRC one must begin by establishing what “Confucian” and “socialist “ family law would look like so as to create a background against which their influence on modern China may be evaluated. The project will begin by introducing some of the key features of Confucian and socialist family law. This will be the subject of Parts 1 and 2 of this series respectively.

Having established a system against which the differing influences on modem Chinese family law may be judged, we will turn, in Part 3, to 21st Century Chinese family law and the assessment of the extent to which it reflects these influences.

Marriage in Traditional China

The Formation of Marriage

On the question of the formation of marriage, three rules in particular stand out. The presence of these rules illustrates broadly that Imperial China placed very different rights and responsibilities on husbands and wives, that detailed regulation of family life was normal, and that filial piety played a central role in the regulation of Imperial Chinese society.

The first such rule is on the question of the age from which marriage was permissible. For example, during the Tang dynasty, women were forbidden from marrying before the age of twenty while men had to wait until the age of thirty.[4] Superficially this is evidence of the way in which the law of Imperial China placed very different rights and responsibilities on the shoulders of men and women. Additionally, given the comparatively short life expectancies of the pre-modern world, it seems somewhat counterintuitive for men to be forbade from marrying until the age of thirty. ln reality, however, there is considerable doubt over whether this law was always, or even often, followed. “Wang Ch'ung, the famous cynical and critical scholar of the first century AD, asserted that this rule had never been applied in classical times and stated that it was not followed by his contemporaries”[5]. Instead per Dull, it appears that women were married in their mid-teens and men in their 20s[6]. This is far more in keeping with what was to be expected in the Western world at the time although still expresses a differing treatment of men and women.

In addition, the Tang code also prohibited bigamy. This included situations where one party was already legally married as well as those in which “one had previously concluded a betrothal with another person than the one to be married.”[7] This strict attitude towards bigamy stands in contrast with a laissez-faire view of concubinage, which placed a far more stringent requirement of fidelity on the wife than the husband. Indeed as Menander-Dawson noted in 1915, “Concubinage was then and theretofore, as now, also an institution in China and is recognised by Confucius and rules laid down also for its regulation. The relationship was treated as not less regular than that of marriage but it involved lower standing for the concubine and her offspring.”[8] Indeed, while infidelity of the husband was regarded as normal, provided that it was with a known concubine, infidelity on the part of the wife was grounds for divorce, as will be touched upon later.

Further, in the prohibitions against marriage there is some evidence of the importance of filial piety. This can be seen in the prohibition of marriage during the period of mourning for a deceased parent or spouse.[9] Filial piety will be addressed in more detail below. However, for now it is simply worth noting that its importance can be seen even in rules such as those on the formation of marriage. Less controversially, Imperial China also promulgated strict rules against incest. This was to the extent that, in addition to the usual bans against marrying close relatives, “Persons belonging to the same clan and having the same family name could not marry”[10]. Interestingly this appears to be based more in pragmatism than abstract morality. Indeed, “In the “Tso Chuan” the following reason for this rule is given: “When husband and wife are of the same surname, their children do not do well and multiply.””[11]

The Nature of Marriage

The two points of particular note relating to the nature of marriage in Imperial China are that it was conceptualised primarily as a union of families rather than a union of individuals, and that the role of the husband / father was very clearly that of head of the household with the other members subject to him.

On the former point it should be noted that marriage in Imperial China was more than the union of two individuals. Instead, it was “the union of two surnames in friendship and love, to continue the posterity of the sages of old, to supply those who shall preside at the sacrifices to Heaven and Earth, at sacrifices to ancestors, at sacrifices to the spirits of the land and grain.”[12] This point is reinforced by the custom of arranged marriages; “most surviving records show that marriages were usually arranged by the couple 's parents, elders, relatives or social superiors”[13]

On the latter point, the following quotations from Mencius illustrate the way in which the role of women was that of homemaker, and that they were not party to the processes of decision-making and discipline within the family. First, Mencius observes that: “The woman follows the man. In her youth she follows her father and elder brother; when married, she follows her husband; when her husband is dead, she follows her son.”[14] He also notes that “At the marriage of a young woman, her mother admonishes her, accompanying her to the door on her leaving and cautioning her with these words, “You are going to your home. You must be respectful. You must be careful. Do not disobey your husband!”'[15] Thus, Mencius portrays the nature of marriage in Imperial China both as a hierarchical and a public institution, rather than a private one.

Dissolution of Marriage

Menander-Dawson argues that “sacredness” and “permanence” were key features of marriage in Imperial China.[16] In the light of this one would perhaps expect the procedure for divorce to be difficult and its actualisation to be rare. However, divorce in ancient China was far from difficult, and more common that would be expected, although notably not as commonplace as in ancient Rome.[17] Indeed Menander Dawson recognises this marital freedom in his observation that: “there seems to be more constraint about entering into wedlock than about continuing in it.”[18]

Remarkably Tang China appears to have had a form of no-fault divorce, known as “ho-Ii” in the Tang code[19], such that “Once wedded, the husband and the wife were free to separate at will and without constraint.”[20] This suggests that marriage in Imperial China was not the inviolable bond of Christian Europe at the same time. Indeed, at roughly the same time as the early Tang dynasty in China, Emperor Justinian outlawed mutual no-fault divorce in the Byzantine Empire, and placed heavy restrictions on remarriage after divorce.[21] This in turn caused many Byzantines to retire to celibate life in monasteries after their divorces.[22]

In addition to consensual divorce, Tang China allowed unilateral divorce by one spouse in multiple, but clearly defined, scenarios. For example the Ta-Tai-Li provides that a husband may divorce his wife for any of the following reasons: “lack of filial duty towards the husband's parents; lack of sons; immorality; jealousy; dangerous illness; loquaciousness; theft.”[23] This is again more lenient than the Byzantine equivalent of the same era, which permitted fault-based divorce only in cases of adultery.[24]

In contrast the wife may only divorce her husband in the case where the “bond is broken”[25] or where she has been abandoned by her husband for more than three years.[26] The former of these requirements can only be demonstrated if the husband has committed one of the following offences: beating the wife's parents or grandparents, killing the wife's brothers, sisters, maternal grandparents, paternal uncles and their wives, and paternal aunts, or committing adultery with the wife's mother.[27] A quick comparison to the grounds for unilateral divorce by a husband shows the divorce law of much of Imperial China is substantially more generous to a husband wishing to divorce his wife than vice versa.

This inequality is reinforced by the fact that “upon divorce the woman is returned to her own family”[28] where she will become, once again, subject to her father. Furthermore, following divorce a woman “lost all rights with respect to her children, who must stay in her former husband's family”[29]. This stands in stark contrast to much of the modern West. Further still, in the event that she post-deceases her ex-husband, a divorced mother may not be mourned for by her eldest son.[30] Given the great importance of the traditions of mourning within ancient China, this penalty would have a represented a great cost to any women involved in a divorce. The inequality in divorce law between men and women in ancient China is thus accentuated further.

However, it would be wrong to ignore the fact that there was some protection against being divorced for women in ancient and Imperial China. Indeed, a husband was forbade from divorcing his wife in any of the following situations; where the wife had no family to return to or her family had all passed away, where the wife had observed the three years’ mourning for her parents-in-law, or if “the husband had been poor and humble at the time of marriage and became rich and noble later”[31]; perhaps in recognition of her contribution. Thus there was some protection against being divorced for women in ancient China.

Moreover, there was a significant financial disincentive for a husband to divorce his wife in that he must return the bridal dowry to the bride.[32] Yet, it is often argued that more important still was the strong social pressure against a husband divorcing his wife and the injury that it would cause her.[33] This is especially the case given the fact that a husband was able to take concubines and thus, had no “need” to divorce his wife in situations such as those in which she is unable to provide him with an heir. Nonetheless, there remained in Imperial China a clear inequality between husbands and wives in both the grounds for, and the consequences of, a divorce; something that, as will be argued later in the series, twenty-first century China has been very keen to avoid.

It should be clear in summary that the key themes of the law governing the relationship between spouses in ancient and Imperial China were that marriage was a hierarchical relationship and that this entailed differential treatment for men and women; that detailed regulation of what many in the modern West would refer to as “the private sphere” was common place; and that in a classically Confucian way the family, rather than the individual, was the base unit of society.

The Parental Relationship in Traditional China

Arguably the most distinctive, and certainly the most notable, feature of the relationship between parents and children in Imperial China was filial piety. Filial piety is perhaps best described as the ethical relation of family members to one another, particularly those of father and son. Indeed, it is notable that “the [Chinese] character for filial piety depicts one person in relation to another, but not just any two people. It is the depiction of what is called in ethics a special moral relation. It is composed of the character for child and a contracted form of the character for old man, here defined in terms of the adult closest to the child, the parent. The character literally means then the relation of children and parents.”[34]

The Children of Living Parents

Piety towards living parents was, per Menander-Dawson, more important than the more commonly observed piety towards deceased parents.[35] It certainly placed significant financial demands on the children of living parents. Per Tsang-Tsze the lowest degree of filial piety is “merely being able to support [one 's parents]”[36]. Further the extent of the financial demands can be seen in the following statement from the Li Ki: “While his parents are alive, a son should not dare to consider his wealth his own nor hold it for his own use only.”[37]

Yet financial demands were not the full extent of filial piety but its bare minimum requirement: true filial piety demanded “reverence, love, and obedience” and was best fulfilled by the somewhat nebulous task of being a credit to one’s parents.[38] In fact, for Confucius, mere financial support was not sufficient to qualify as filial piety. Indeed per Confucius, “If, when their elders have burdensome duties, the young take the toil off them, and if, when the young have wine and food, they set them before their elders, is this to be deemed filial piety?”[39] A more practical example of the nature of filial piety is that, per Confucius “While his parents are living, a son must not go abroad to a distance; or, if he should do so, he must have a fixed place to which he goes.”[40] From this it should be clear that filial piety places significant demands on children and constitutes a major part of the regulation of family life.

The Children of Deceased Parents

Filial piety also imposes certain, more clearly set out, duties on the children of deceased parents. The first such requirement is that of continuing good conduct for at least three years after the death of the father. Per Confucius “While a man's father is alive, look at the bent of his will; when his father is dead, look at his conduct. If for three years he does not alter from the way of his father, he may be called filial.”[41] Indeed, per the Shi King, the nature of mourning to a pious son is such that ·”'When early dawn unseals my eyes, before my mind my parents rise.”[42]

Further, the son of a deceased parent is required to mourn for his parent for three years. This is because, per Confucius, “it is not till a child is three years old that it is allowed to leave the arms of its parents.”[43] During this period of mourning, it is required that the child “lives retired from the world, leaving the management of his affairs to others and abandoning himself to meditation, spiritual communion with the departed, and grief.”

Additionally, the son of a murdered father is required by piety to take revenge on the murderer. Per the Li Ki, “With him who has slain his father, a son should not live under the same sky.”[44]

Thus the requirements of filial piety show that pre-modern China held elder family members in a state of great reverence, and demanded of their children love and obedience. Additionally, the often-detailed regulations show again that the ancient Chinese did not have the same distinction of public and private spheres, with the latter being outside of the realm of the society, as the modem West does.

The Parents of Living Children

While filial piety is often depicted as a one-way relationship, this may not be the whole truth. It is certainly true that filial piety places significant demands on children. However, true filial piety is perhaps more of a reciprocal relationship between parents and children. This was alluded to above in the fact that the justification of the three-year mourning period is that the parent cares for the infant child, often not leaving their side, for a period of three years. Thus, the mourning period is giving back that care and attention which was given to the child in infancy. Similarly one can justify the requirement to take care of parents in old age by reference to the fact that the parents have taken care of the child in childhood.

Per Taylor, “Filial piety begins with the care of the child by the parent, that is, it is the relation of the parents toward the child! Caring for the parent by the child is an outgrowth of the beginning relation of parent to child and the love and care provided by the parent for the child.”[45] Taylor also notes three ways in which a parent must demonstrate the relationship of filial piety towards their child. He argues that parents provide for the biological, educational and moral needs of their children without which their development is hindered.[46]

This interpretation may be pleasing to the ears of modem egalitarians; however, it does not seem to be correct. Instead it seems more plausible that filial piety places legal, or at least quasi-legal, requirements on children that are justified by the actions of their parents. However, it does not appear to be the case that a parent is required by filial piety, as opposed to by other strong moral requirements, to take care of their child. This is shown by the fact that the requirements of filial piety still bind upon the children of bad parents. In short, it is hard to argue that filial piety is a truly reciprocal relation when the requirements on the children bind even when the requirements on the parents have not been fulfilled.

Looking Forward

Next time the project will turn to what the socialist aspects of “socialist with Chinese characteristics” might look like in Chinese family law.

[1] Miles Menander-Dawson, The Ethics of Confucius (1915) p137

[2] Zailin Zhang and Shaoqian Zhang, “Theories of Family in Ancient Chine se Philosophy” (2009) 4 Frontiers of Philosophy in China 343

[3] Chris Buckley, “China Enshrines “Xi Jinping Thought,” Elevating Leader to Mao-Like Status” New York Times (24 October 2017)

[4] JL Dull, “Marriage and Divorce in Traditional China” in DC Buxbaum (ed), Chinese Family law and Social Change in Historical and Comparative Perspective (1978). p25

[5] ibid. p26

[6] ibid. p26

[7] MH Van Der Valk, An Outline of Modern Chinese Family law (1939). p20

[8] Miles Menander-Dawson, The Ethics of Confucius (1915). p144

[9] MH Van Der Valk, An Outline of Modern Chinese Family law (1939). p20

[10] Ibid. p21

[11] Miles Menander-Dawson, The Ethics of Confucius (1915). p142

[12] Ibid p143

[13] Bret Hinsch, Women in Early Imperial China (2nd ed, Rowman & Littlefield Publishers 2010). p143

[14] Miles Menander-Dawson, The Ethics of Confucius (1915). p139

[15] ibid. p143

[16] ibid. pl46

[17] Suzanne Dixon, From Ceremonial to Sexualities: A Survey of Scholarship on Roman Marriage, A Companion to Families in the Greek and Roman Worlds (2011). p248

[18] Miles Menander-Dawson, The Ethics of Confucius (1915). p146

[19] MH Van Der Valk, An Outline of Modern Chinese Family law (1939). p23

[20] Miles Menander-Dawson, The Ethics of Confucius (1915) p147

[21] Mark Cartright, “Women in the Byzantine Empire”, Ancient History Encyclopedia (2018)

[22] ibid. 23 Ta Tai Li per MH Van Der Valk, An Outline of Modern Chinese Family law (1939). p22

[24] Sandro Magister S, 'Divorce and Second Marriages. The Compliant "Oikonomia" of the Orthodox Churches' (26 September 2014) <http://chiesa.espresso.repubbl... ? eng=y&refresh_ce>

[25] YH Tai, “Divorce in Traditional Chinese Law” in DC Buxbaum (cd), Chinese Family law and Social Change in Historical and Comparative Perspective (1978). p9l

[26] MH Van Der Valk, An Outline of Modern Chinese Family law (1939). p23

[27] YH Tai, “Divorce in Traditional Chinese Law”' in DC Buxbaum (cd), Chinese Family law and Social Change in Historical and Comparative Perspective (1978). p93

[28] MH Van Der Valk, An Outline of Modern Chinese Family law (1939). p23

[29] ibid. p23

[30] Miles Menander-Dawson, The Ethics of Confucius (1915) p149-150

[31] MH Van Der Valk, An Outline of Modern Chinese Family law (1939).

[32] Miles Menander-Dawson, The Ethics of Confucius (1915) p150

[33] Miles Menander-Dawson, The Ethics of Confucius (1915) p150

[34] Rodney L Taylor, “'Family Values” - Confucian Style' (29 November 2011) www.huffingtonpost.com/rodney-... ll05960.html>

[35] Miles Menander-Dawson, The Ethics of Confucius (1915) p157

[36] Li Ki, bk. xxi. sect. ii. 9. Per ibid. p 160

[37] Li Ki, bk. xxvii. 30. Per ibid. p 160

[38] ibid. pl60-161

[39] Confucius, The Analects, bk. ii., c. viii. Per ibid. p 161

[40] Confucius, The Analects, bk. iv., c. xix. ibid. pl65

[41] Confucius, The Analects, bk. i., c. xi. Per ibid. p 165-166

[42] Shi King, The Book of Odes, Minor Odes, Decade v., Ode 2 per ibid. pl71

[43] Confucius, The Analects. XVll;21

[44] Li Ki Bk. i., sect. i., pt. v., c. ii., v. 10 per Miles Menander-Dawson, The Ethics of Confucius (1915) p157

[45] Rodney L Taylor, “' Family Values” - Confucian Style' (29 November 2011) <https://www.huffingtonpost.com/rodney-... ll05960.html>

[46] ibid.