“Legalizing space in China” research program

Report on the workshop on “Property rights, commerce and taxation under the Qing: the perspective from the Code”

Taipei 28-29 April 2011

During the initial meeting of the research program “Legalizing Space in China”, held in Lyon last January, it was decided to create specialized workgroups on the most crucial parts of the Qing code. In turn, these workgroups are expected to hold workshops once or twice a year, to discuss specific legal topics and translation matters.

            The first of these workshops was held on 28-29 April at Academia Sinica (Taipei, Taiwan). It was co-organized by the Taipei Centre of the EFEO (French Institute for Far Eastern Studies) and the Institute of History and Philology’s research team on the history of law (歷史語言研究所, 法制史研究室). It was targeted to explore the “Household part” 戶律 of the Ming and Qing codes, in fact, more accurately, their “Household, marriage, land, and debts” section (戶婚田債門), which is commonly, if questionably, branded “civil law” by many recent historians.

            Following the format agreed upon in Lyon, this was an open workshop and we were fortunate enough to enjoy the active participation of researchers from the Institute of History and Philology as well as of visiting scholars and local academics from other Taiwanese research institutions (see appended list of participants). 5 sessions were planned, which each gathered some 10 to 14 scholars, allowing for lively debates that focused on the interpretation of the law, and particularly on the definition(s) of the legal terms as they occur in the Code and in legal decisions, as well as their uses by the people in various local contexts — with of course shifts of meanings and discrepancies between the codified term and its use in concrete situations, which is one of the major objects of our research.

            Jerome Bourgon presented a reading of statute 95 (典賣田宅) and of some of the sub-statutes (條例) appended (95-03 and 95-07, particularly) in connection with texts where officials (Wang Huizu, among others) explained how they dealt with contracts deeds. A long discussion occurred about 典賣, a recurring expression in these articles: should it be understood, and translated, as “sale through mortgage” or “by mortgage”? Or just as “sale and mortgage”, with no explicit connection? The latter has been retained, in a significant break-off from common interpretation, for inclusion in the draft glossary proposed to the workshop.

            Luca Gabbiani focused on the 稅契 registration of land sale contracts by local authorities, and the certificates or 契尾 that were given to the new owner to certify the mutation of ownership. The sub-statutes 條例 appended to statute 95 were complemented by regulations 則例, which specified important legal issues, such as the delay after which a mortgage 典 had to be turned into an irrevocable sale 絕賣.  If the law stated very clearly the mandatory nature of the tax, and specified the sanctions that offenders deserved, the positive aspect of the tax on contracts remained implicit, since the law never explicitly linked tax payment to any form of property claim.

            Matsubara Kentarô questioned realities behind legal terms such as “land tax”, “sale” and “property” on the basis of his research on traditional land rights in Hong Kong’s New Territories. As there was no usable cadastral map, the land tax was disconnected from land property, and the authorities had to resort to the local “village knowledge” to assess taxes. Land ownership and sales depended more on local social networks than on market dynamics or legal rules, an aspect well exemplified by the practice of subcontracting “additional payment” 找貼 imposed to the buyer, even though the initial contract stipulated an “irrevocable” sale 杜賣. In a case extracted from the 刑科題本, such a request of “additional payment” resulted into a conflict and, eventually, in an unintentional killing. Let apart the penal adjudication, the judge decided that the subcontract of “additional payment” must be honored — which ignited an animated debate among the workshop participants to decide whether this decision should be regarded as the implementation of the codified law, and, more generally, whether private conventions were framed in any way by public law, or if they were not, as such sayings as 私約無律令 let believe.

            Chiu Peng-sheng’s contribution, presented by Luca Gabbiani, dealt with the “market place” 市廛. If the trend to a more remote control, and a relative disengagement by the state, over the period spanning the Tang to the Qing is clearly perceptible, the question of whether officials ever had an economic understanding of the abstract notion of “market” remains to be further explored. The state relied on intermediate actors, such as “brokers” 牙行, to frame specific trades, to mediate in conflicts and to smoothen fiscal levies. This was enough, it seems, to allow for economic growth and for the shaping of some rules targeting fair trade. A discussion developed on the notion of market, in particularly for land: was there ever an institutionalized land market in late imperial times, with some sort of real estates agencies, etc.?

            Zhang Xiaoye focused on the succession to family wealth trough the institution of a heir: 立嗣. The expression used in the Qing code is 立嫡, as in the statute 立嫡違法. But this was a belated borrowing to the rules of succession to nobility titles 封爵. From the Tang onward, expressions like 收養 (to receive and breed — an adopted heir) and 繼絕 (to continue a virtually extinct family line) were permitted in the “Ordinance on extinct families” (戶絕令), while adopting a heir of “another name” (異名子), i.e. out of the line of regular descent 宗, was prohibited in the Tang  code 唐律. Under the Song, ordinances and other legal texts came to be mixed with the penal laws (律) into the 宋刑統, hence a confusion of formerly distinct categories into 立嗣. This was a popular conception allowing people to express their feelings in front or the more official 立嫡, that prevailed starting from the Ming code as a legal expression of the revival of the big lineage and linear descent ideology 宗法.

            Unfortunately, this report cannot convey thoroughly the very rich discussions that occurred after each of these presentations — and more often than not right in the midst of them! As a conclusion to the general discussion, it was resolved that more specific topics of debate and translation should be chosen for the upcoming workshops (concentrate for example on one statute and its sub-statutes), in order to be more productive in the translation of articles.

We wish here to thank all the participants for their questions and remarks. The resources presented during these two days will be soon put on line (http://lsc.ish-lyon.cnrs.fr/), with tentative translations and explanations, allowing all those who wish to take an active part in the general research and translation program to say their word. Finally, we hope to have a new meeting of the “Household” (戶律) workgroup during the coming year. We will of course keep all of you informed. For those of you who wish to be part of the workgroup and/or obtain a login access to the program’s website, please contact either Jerome Bourgon (jerome.bourgon@ens-lyon.fr) or Luca Gabbiani (luca.gabbiani@efeo.net).