Contract and Property in Early Modern China.

CONTRACT AND PROPERTY IN EARLY MODERN CHINA. Edited by Madeleine Zelin, Jonathan K. Ocko and Robert Gardella. Stanford (CA): Stanford University Press. 2004. vii, 398 pp. (Tables.) US$65.00, cloth. ISBN 0-8047-4639-7.

In his overarching study of China's legal tradition (Law and Society) in Traditional China [Paris: Mouton and Co.]), published in 1961, Ch'u T'ungtsu's few references to property are largely tangential to discussions of the family and inheritance. His accounting followed logically from the fact that the Chinese legal system did not yield a coherent and systematic body of property law before the twentieth century. As Ocko explains in the book under review here, prior to the twentieth century "no land law of the sort that we find in Europe ever developed" (p. 179). This changed when property law was written into the Republican Civil Code of 1929-1930, but the continued fact of national disunity meant that a national property law remained unrealized.

Yet, recent work has shown that peasant, merchant and urban communities had ways specific to them to exchange and secure property claims in the Qing and Republican eras--a fact that begs the question of the provenance and reproduction of these means. The essays contained in Contract and Property in Early Modern China are part of a growing literature that seeks to address such issues. These essays reach from the countryside to the town and--despite the book's title--from the eighteenth century to the 1940s. Each author takes as their point of departure the written contract to ask how contractual claims were made and asserted.

In the absence of statutory civil law in the Qing, Zelin, Ocko and Gardella, following Philip Huang (Civil Justice in China: Representation and Practice in the Qing [Stanford, CA: Stanford University Press, 1996]), argue in the introduction that there was nonetheless a practice of civil law, the culture of which presumably carried over into the twentieth century. Legal protection of property was a principle discernable in the code itself, they argue. But, it is one thing to demonstrate that the courts (and communities) had ways to handle disputes over property et cetera, which each of these essays ably does, and quite another to argue for civil law. It is also not quite the case that the Qing code recognized the right to property in principle: the closest it came, as Zelin et al. point out, was to punish the theft of property, which is not the same thing.

Thus it is argued by Jerome Bourgon ("Uncivil Dialogue: Law and Custom Did Not Merge into Civil Law Under the Qing," Late Imperial China 23: 1 [2002] pp. 50-90) that in the European civil law tradition, practice became legal custom when it was a rule binding in the community, where it was explicitly cited and enforced by official courts in their judgments, and that there was nothing analogous in the Chinese legal tradition. Indeed, what the essays here show is why practically speaking such a legal tradition might not take root. In both rural and urban settings, Thomas Buoye, Anne Osborne and Feng Shaoting show that courts could not enforce their judgments. In that case, how could the courts have established customary precedent and then enforced it as part of a civil law system? For such reasons, far from being an accepted truth in the field, the notion of a Qing civil law is a contested one, with most Japanese scholars rejecting it outright.

What this collection of essays does point to is the ability of communities to self-regulate, with or without the state's backing. Along these lines, one of the most interesting offerings is from Myron Cohen. With an anthropologist's eye, Cohen suggests that contracts in China were first and foremost "social" documents, insofar as their legitimacy was established first and foremost through the participation of social intimates. They became legal instruments when the communities failed to enforce or mediate disputes. On the flipside, Mark Allee shows that magistrates habitually required witness substantiation of contracts. Similarly, the essays by Man Bun Kwan on Tianjin salt merchants, Zelin on Sichuan salt enterprises, Gardella on business partnerships, and Tomoko Shiroyama on Shanghai cotton mills show how commercial groups were formed and held together through communal or familial self-regulation. It seems reasonable to conclude, following Bourgon, that it was indeed the very absence of civil law that gave the contract its primarily social character.

The absence of civil law would also explain other findings. What the essays by Kwan, Osborne, Buoye and Allee show most clearly is that the courts had to make deals with communities, which required that they negotiate between the Code and local practices. This is a significant finding, and contradicts Huang's (1996) contention that magistrates applied the law strictly in such cases. But, if the courts were left negotiating between code and local practice, how are we to understand this as a legal practice? Is there no coherent legal system to speak of and instead a jigsaw of local practices and negotiations? To answer this puzzle, Ocko and Allee both suggest that local practices became norms when they were established as legal precedents. But, we know that magistrates did not cite prior findings as general precedent; rather they cited prior decisions in a particular legal case and in reference to that case alone.

What contracts do show is that many practices were widely shared in China, over space and time. These important essays show this and do an admirable job explaining the local logic entailed. But by begging the question of the fit between civil law and the Chinese legal practice, there is no accounting of these practices as a social/legal system.

CHRISTOPHER M. ISETT

University of Minnesota, Twin Cities, U.S.A.