Organizer: Kathryn Bernhardt, University of California, Los Angeles
Chair: Philip C. C. Huang, University of California, Los Angeles
Discussant: Hugh T. Scogin, Jr., NYU Law School
Prostitution in Late Imperial Law: From Social Identity to "Illicit
Sex"
Matthew H. Sommer, University of Pennsylvania
This paper uses legal codes and case records to explore the judicial treatment of prostitution in late imperial China. It proceeds from the deceptively simple question of whether prostitution was legal in Qing law. From Yuan through mid-Qing, prostitution, like all sexual promiscuity, was illegal for commoner (liang )women, constituting the crime of "illicit sex"( jian). At the same time, however, prostitution was tolerated as a mark of debased hereditary status for certain groups considered beneath the law. The stigma attributed to such groups helped define, by contrast, all that was "good" (liang) about the "good people"-i.e., commoners. In effect, people of different legal statuses were held to different standards of morality and criminal liability.
In 1723, the Yongzheng Emperor eliminated the "mean" status of groups associated with prostitution. In practical terms, this "emancipation" meant that previously exempt persons would now be held to commoner moral standards, making them liable for the commoner crime of "illicit sex." I.e., the legal space for toleration of status-based prostitution was eliminated, and all commercial sex work became subject to prosecution as ordinary adultery.
A deeper continuity underlying this change was that the commercial element always took second place to the sexual: payment of money was never singled out for extra penalties beyond those mandated for non-commercial "illicit sex." The target of official censure was not commodification, but rather extramarital sexual access to commoner women.
Widows, Succession, and Inheritance in Late Imperial China
Kathryn Bernhardt, University of California, Los Angeles
This paper analyzes how the changing relationship between lineal succession and property inheritance in the post-Tang period transformed the nature of widows' rights to family property. Up through the Tang, it shows, lineal succession and property inheritance were two distinct legal categories. Laws on succession reflected the interests and concerns of the ruling aristocratic elite and the importance of primogeniture as a way to pass on titles and offices from one generation to the next. Laws on property inheritance came in the form of laws on household division and reflected the principles of equal division among sons operative among the peasantry.
Beginning in the Song, the displacement of the hereditary aristocracy by the gentry elite and the incorporation of popular norms and practices into the imperial codes brought about a growing convergence between lineal succession and property inheritance. That convergence, however, was never complete, and the widow and her claims came to embody the particular points of tension between the two. The paper examines how those tensions played themselves out in actual legal practice and what that meant for a widow's rights to property.
Narrative and Action: A Study of Qing Case Reports and Reviews
Guangyuan Zhou, University of Baltimore
Reports and reviews of each important criminal case were a sine qua non of Qing law, and the report-review system as a grand institution was at the heart of the Qing criminal system. It was a system that guaranteed efficiency of the administration of justice by imposing deadlines on legal officials in handling criminal cases, and it was also a system of quality control in which various legal authorities with collective responsibilities scrutinized each case for its quality.
This paper examines reports and reviews both as texts and as action. The two aspects were of course inseparable. Analytically, a study of reports and reviews as texts will enable us to reveal the deep structure and assumptions of Qing law in a concrete manner, and a study of reports and reviews as the action of legal actors will demonstrate the habitual forms of Qing legal practice in a rich and comprehensive way.
The paper is divided into two parts. The major concern of the first part is how truth was constructed and perceived through reports and reviews as texts. My approach is to look at reports from different perspectives and thus to reveal their different functions. The second part will shift from the study of texts to the study of action. Case reports and reviews were not merely the paperwork of bureaucrats, but plans of action constructed by legal actors that were directly related to the life and death of many people.
Clichés, Plot, and Written Culture: Composing Plaints in Qing Legal Case Records
Yasuhiko Karasawa, University of California, Los Angeles
This paper examines the writing practice of the literate people of the lower class by analyzing both plaints in local-level case records and "handbooks for pettifoggers." Careful comparison of the literary devices in plaints and those found in the handbooks sheds light on the cultural origins of the social activities of these literates.
The packaging of events observed in plaints invariably includes specific patterns of plot development, legal terminology, and clichés. Such terminology came from lists of vocabulary included in "handbooks for pettifoggers." These handbooks basically explain how to present an event in an exaggerated manner in order to attract the attention and sympathy of a magistrate. Employment of such vocabulary denote the narrative strategies in plaints. As "handbooks of pettifoggers" imply, anybody possessing a measure of facility with literary language (not necessarily legal specialists) could compose a plaint by combining certain words and phrases strategically.
The strategic use of quotations, specialized terms, and clichés was widespread among all classes of literate people in late imperial China. This fact suggests the crucial role of elementary learning (regardless of the level of literary finally achieved) as a specific feature of Chinese written culture. Once the pattern of writing was acquired at the early stage of learning, all literates probably shared the basic idea of the pattern of composition. My approach to plaints is thus to explore their narrative elements with attention to the broader cultural context which shaped them.