Socialist, Chinese, or Liberal? An Introduction to Chinese family law – Part 2: Socialist Influences

Introduction

It is worth noting at this point that a socialist family law has never existed in isolation. It has always come about in opposition to the legal structure that predated it. For example the USSR introduced a "socialist" family law in opposition to the traditional Eastern Orthodox Christian family law of the Russian Empire. Thus we must not take the family law of the USSR to be the perfect benchmark of what socialist family law may look like, any more than we may take the family law of the PRC or any other socialist state. Instead this article will analyse the key features of Soviet family law in addition to the criticisms of the family as presented by Engels, Zaresky and Bourdieu so as to present the socialist view of the family in both theory and practice. I will argue that while the Marxist writers are willing to criticise staunchly the family, socialist family law as born out in the USSR is, broadly speaking, less revolutionary.

It is also interesting that the man widely credited as the founder of communism, Karl Marx, wrote comparatively little on the family. Indeed Marx's sole critique of the family was that it was the mechanism through which private property regimes could be maintained, via inheritance. Thus for Marx, the family was only in opposition to communism insofar as it propagated capitalism. Marx’s friend and colleague, Engels, however, wrote prodigiously on the family and thus it is with Engels that our examination of socialist family law will begin in earnest.

The Socialist Critique of the Family

In The Origin of the Family, Private Property and the State, [1] Engels reiterates Marx's criticism that the family is little more than an aid to the preservation of private property and male supremacy. We can see this theory in detail in his lengthy description of a post-revolutionary society: "Here all property is missing and it was precisely for the protection and inheritance of this that monogamy and man rule were established. Hence all incentive to make this rule felt is wanting here.. Thus the family of the proletarian is no longer strictly monogamous, even with all the most passionate love and the most unalterable loyalty of both parties, and in spite of any possible clerical or secular sanction. Consequently the eternal companions of monogamy, hetaerism and adultery, play an almost insignificant role here. The woman has practically regained the right of separation, and if a couple cannot agree, they rather separate. In short, the proletarian marriage is monogamous in the etymological sense of the word, but by no means in a historical sense." [2] What Engels is arguing for here was truly radical at the time; a marriage law that views the institution of marriage as monogamous but not permanent, a view that had not been widely shared in Europe since the fall of the Western Roman Empire.

Zaretsky [3] expands this by arguing that the institution of the family also upholds capitalism via two additional means. First, the family acts as a psychological crutch designed to comfort the worker and incentivises him to perform alienating work in return for that which will benefit his family. Additionally, he argues that the family also performs the task of socialising children into the capitalist system. In support of this he notes that it is within the family that children are taught obedience and respect.

Similarly, in Distinction [4] Bourdieu staunchly criticises inheritance, although not only material inheritance, as the bedrock of the capitalist system. He argues that the family sustains capitalism and its corresponding class distinctions through the inheritance of social and cultural capital. Thus even in a world without material inheritance, the family, for Bourdieu would still support capitalism.

We can see in the writings of these Marxists a deeply held suspicion of the very institution of the family; whether that be Engels criticism of monogamy or the more general Marxist criticism of inheritance. However, socialist family law in action, while broadly ideologically aligned with the above, had far more modest aims for the evolution of family structure.

The Relationship Between Spouses

China and Russia have different pre-revolutionary histories and the main influences on each at the point of revolution were Confucianism and the Eastern Orthodox Church respectively. However, given the fact that the aim of communist revolution in both countries was to break with the past and to implement socialism from a fresh slate, a direct comparison of the People's Republic of China with the USSR is useful.

The early stage of marriage law in the USSR was characterised by a striking break with the past. Within days of the revolution, the first Decree on Marriage and Divorce, of December 18 and 19, 1917, was issued granting freedom of divorce and removing marriage from the auspices of the Church. This was then confirmed in the revolutionary Family Code of 1918, which, per Berman was "designed to break completely with the religious principles of pre-revolutionary family law." [5]

Berman further argues that the liberalisation of marriage law in the USSR reached its “climax in the new Family Code of 1926, which relegated both marriage and divorce to the sphere of private agreement, with the control of the courts and of the state reduced to a minimum.” [6] Indeed, by 1926 state control over marriage had become so minimal that the state would recognise a form of de facto divorce, where one party could simply leave, and against which there was no defence. [7]

This Leninist family law was justified by reference to the earlier socialist criticisms of the family. Per Juviler, "Only this law, it is said, ends unequal treatment for women and ends the exploitation of women within the family. Without capitalist ownership of the means of production, an improved type of family - one based on non-materialistic motives - is emerging under socialism."[8] The feminist character of this family law was no accident either. Indeed, Juviler notes "the emancipation of women was a central purpose of Bolshevik family law."[9]

This equality-based family law is echoed in the socialist state of Cuba where per Article 26 of the Cuban family code: "Both partners must care for the family they have created and each must cooperate with the other in the education, upbringing, and guidance of the children according to the principles of socialist morality. They must participate to the extent of their capacity or possibilities, in the running of the home, and cooperate so that it will develop in the best possible way. "[10]

Nonetheless, even at this point, it is worth noting that the fundamental purpose of marriage was still childbearing. This can be seen in the fact that a “fictitious marriage”, which the courts were required to invalidate, was defined as “a marriage registered” without the intention of starting a family “and evidenced by non-consummation.” [11] This shows that even during its most laissez-faire phase, Soviet family law regarded starting a family as the chief purpose of marriage. Thus, even this early Soviet family law represents less of a break with the Orthodox conception of the family as a childbearing institution than one might assume.

What is clear, however, is that following this early stage, and the fall in marriages and births that accompanied it, marriage law in the USSR made a very sudden return to something resembling the pre-revolutionary system. Indeed, Koestler talks of a "betrayal of socialism" [12], while Timasheff describes the period as "the great retreat" [13].

The first sign of this reversion is the removal, in 1927, of the court recognition of de facto divorce [14]. Whilst this is only a small step towards the previous system, it was a sign of things to come. Indeed, it is clear that by 1944 the era of easy divorce and limited regulation of marriage was over. Writing in 1964, Prudkova noted that: “Soviet law makes no provision for any legal grounds for the dissolution of marriages; the only ground for a divorce is the breakup of the family and the impossibility of restoring normal matrimonial relations” [15]. Per Berman, the Russian phrase used translates best as only “in the event that it is necessary.” [16] This represents a significant change from the period of total freedom of divorce.

However, by the 1980s Soviet divorce law would have begun a re-liberalisation not dissimilar to the West. Indeed, Juviler argues that the developments in Soviet divorce law mirror the West in that they reflect “the movement from indissolubility to dissolubility of marriage, from lifetime marriage to marriage upon the pleasure of one or both partners, from guilt to no-fault breakdown and consent as grounds for divorce, from adversarial to inquisitorial procedure with judges actively attempting reconciliation.” [17] He also notes that by 1984 divorce has once again become relatively routine. "Attendance at Soviet divorce trials indicates that, in practice, they are speedy, routine, almost mechanical rituals with rare refusals once they reach the second and final hearing. [18]

The oscillating legal history of USSR marriage law is also mirrored in its law on reproduction. Indeed, while it has the same pattern as the history of marriage law, the extremes are much more pronounced. For example, on the issue of abortion, the practice was illegal in Tsarist Russia, but was then introduced by law, for free, in state hospitals in 1920. [19] This is a clear demonstration of the way in which early Soviet law constituted a marked break from the past. However, the movement towards the conservative middle period is then shown through the fact that, in 1936, abortion was banned in state hospitals and subsequently criminalised. [20] This conservatism is also evident in the strong financial incentives that were introduced for having 6 or more children. [21]

The Relationship Between Parents and Children

The centrality of the obligations parents owed to their children can be seen in the following provision of the Constitution of the USSR: “USSR citizens are obligated to care for the upbringing of their children, to prepare them for socially useful work, to raise worthy members of socialist society.” [22] Furthermore, these obligations varied to a lesser extent across time than the law on marriage and divorce: thus reinforcing their importance.

Juviler argues that the requirements of parental support in the USSR were more onerous than those of the many Western countries. In support of this he notes “when minor children become orphans, courts may order a grandparent, brother, sister, stepfather or stepmother to support them.” [23]. In contrast, in the UK other non-parents must volunteer to take on parental responsibility where a family member is orphaned or where the parents are unable to look after them. It is only after they have volunteered themselves that a court would even consider their suitability.

The obligations of parental responsibility may look relatively familiar to a westerner. However, the interpretation of such principles in the USSR is rather different to how they would be interpreted in, for example, the UK. Indeed, as Juviler notes, “Proper upbringing is viewed as a particular ideological obligation. Law is called upon in Article l of the Fundamentals to contribute to ‘the upbringing of children in organic combination with public education in the spirit of devotion to the Motherland, of a communist attitude to work and the preparation of children for active participation in the building of a communist society.’” [24]

This is not, however, a purely one-way obligation. The same constitutional article as requires parents to take care of their children, also states that “Children are obligated to care for their parents and to help them.” [25] Indeed, the same framework, of court ordered responsibility, also applied to disabled adults. “In addition, courts may order the support of a disabled, needy adult by a grandchild or stepchild, in the event that the adult in need has no spouse, parents or grandchildren.” [26]

Given the varying nature of the family law of the USSR it is perhaps difficult to say which family law represents socialism, as born out in the USSR. Indeed, the three periods are marked by very different family laws; the early laissez-faire law, the middle period conservative law, and the later liberal law.

One option would be to discount the last period as Western liberal law and the middle period as conservative law, thus leaving us to argue that socialist family law is best represented by the early period of the USSR. This would allow us to accommodate many of the aforementioned socialist criticisms of the family. However, it would also be mistaken for two reasons. First, while there was surely some influence of Western liberalism in the later family law of the USSR it would inaccurate to argue that it was a purely liberal transplant. However, more damning is the fact that the rationale for the middle period of conservative law indicates that Stalin was not, in pursuing such policies, motivated by conservative ideology nor by concerns of moral decline or tradition, as may motivate a “conservative”. Instead it was concern over falling birth rates. As such, the superficially conservative law of the middle USSR was not, in fact, ideologically conservative. Further still, insofar as the motivation was conservative, it was part of an ideological push to place the family unit at the heart of communism. [27] This continued into the Khrushchev period, as evidenced in 1961 when Khrushchev stated that "Those who maintain that the family will become less important in the transition to communism and that with time it will disappear are entirely wrong." [28]

In reality, socialism is a broad church rather than a singular rigid ideology. As such, all of the above periods of the family law of the USSR may still be classified as socialist and thus all stand to show us the something of nature of socialist family law in practice. Berman identifies five principles of Soviet family law that are broadly consistent across time. These are "(1) monogamy, (2) the lifelong character of marriage, (3) the equality of husband and wife, (4) the protection of illegitimate children, and (5) the protection of mother and child." [29] It is worth noting that even one of these principles, number (2), were not consistently reflected in the family law of the USSR. Nonetheless, they do offer a useful benchmark and will be used as the basis against which to judge the “socialist” aspects of the family law of the twenty-first century PRC. Interestingly, in next week’s final instalment, these principles will be shown to be very similar to the fundamental principles underlying modem Chinese family law.

References

[1] Frederick Engels, The Origin of the Family, Private Property and the Stale (Chicago: Charles H Kerr & Co 1902).

[2] ibid. p86

[3] Eli Zaretsky, Capitalism, the Family and Personal life (Pluto Press 1976).

[4] Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste (Routledge 2010).

[5] Harold J Berman. 'Soviet Family Law in the Light of Russian History and Marxist Theory' (1946) 56 The Yale Law Journal 26. p39

[6] ibid. p39-40

[7] Family Code, RSFSR (1927) 1927. Arts. 19, 20. 1927

[8] Peter H Juviler, 'Soviet Marxism and Family Law· (1985) 23 Columbia Journal of Transnational Law 385. p385

[9] ibid. p390

[10] Law No. 1289, Cuban Family Code, Art. 26 (1975). 1975.

[11] Juviler (n [8]). p389

[12] Koestler, The Yogi and the Commisar (l945) per Berman (n [5]). p41

[13] Timasheff, The Great Retreat (1946), per ibid. fn 101

[14] Family Code, RSFSR (1927) (n [7]). Arts. 19, 20. As amended in 1945

[15] Nina Prudkova, 'New Soviet Family Law' (1964) 50 American Bar Association Journal 363. P364

[16] Berman (n [5]).

[17] Juviler (n [8]).

[18] ibid. p394

[19] Collection of Laws RSFSR (1920) No. 90, Art. 471 1920.

[20] Collection of Laws USSR (1936) I, No. 34, Art. 309. 1936.

[21] Collection of Laws USSR (1936) I, No. 34, Art. 3 18. 1936.

[22] Constitution of the USSR 1977. Art. 66

[23] Juviler (n [8]). p395

[24] ibid. p397

[25] Constitution of the USSR (n [22]). Art. 66

[26] Juviler (n [8]). p396

[27] Amy Randall, “Abortion Will Deprive You of Happiness!” Soviet Reproductive Politics in the Post Stalin Era.' (2011) 23 Journal of Women's History 13.

[28] Nikita Khrushchev, 'Party Leader's Address' (Twenty -Second Communist Party Congress, 1961).

[29] Berman (n [5]). p41