"Judicial Orientalism: Imaginaries of Chinese Legal Transplantation in Common Law"
, Nov 2017), pp. 211 - 237
Introduction: Hong Kong, a common law jurisdiction with a predominantly Chinese population of mainland ancestry, offers an ideal site in which to investigate the historical laws of China from a comparative perspective. Since the early twentieth century, Hong Kong courts have accumulated more than one hundred years of experience dealing with cases of historical Chinese marriage that took place in Mainland China during the Republican era (1912-1949), forming a common law narrative of the historical changes that the law underwent from the imperial to modern legal systems. Into the twenty-first century, a considerable number of family and succession law cases that touch upon the issues involved in these historical marriages continue to be brought before the courts of Hong Kong every year. This chapter challenges the century-old approach to narrating how family law changed in Republican China and raises wider methodological concerns about the tendency of common law-trained judges to follow judicial precedents based on archaic documentary sources and to adopt abandoned historiography in their investigations of Chinese legal transplantation.
In deciding how to ascertain the meaning of the law governing these matters, the Hong Kong court (and apparently also the court of Singapore) demarcates historical China by the effective dates of the various books of the Republican Civil Code transplanted from the West from 1929 to 1931. Cases concerning matters that took place prior to 1929 (primarily those dating to the late Qing [mid-nineteenth century to 1911] and Beiyang [1912-1928, also known as warlords period] eras) are decided with reference to the Qing Code and Chinese custom, whereas those concerning matters that took place in the Nationalist era (1928-1949) are decided solely on the basis of transplanted legal codes modelled on European templates. Hence, traditional Chinese law and custom are ignored.
This conventional judicial practice of demarcating the Chinese legal past has gone largely unchallenged for the past hundred years in both common law courts and in legal scholarship in Hong Kong or other former British colonies in which Chinese law remains relevant to civil lawsuits. However, this chapter argues, through a critique of a Hong Kong Court of Final Appeal (CFA) case important to understanding Chinese family law, that this century-old judicial approach is flawed and indeed Orientalist, particularly in its understanding of how historical legal transplantation took place in China. Such an approach, if not corrected, will remain the authority in directing judges in deciding family law cases not only in Hong Kong but also in other former British colonies populated by indigenous Chinese such as Malaysia and Singapore. More importantly, this chapter also argues that such a judicial approach is but one example of the Orientalist knowledge system governing Chinese legal traditions and legal culture in general, family law and custom included, within common law. Here, drawing on Teemu Rusko-la's work on legal Orientalism, judicial Orientalism is defined as an epistemological representation of traditional Chinese law and legal culture produced and recycled in the courtroom and common law knowledge system. Such a representation for the past century distinguishes traditional Chinese jurisprudence from modern (by default Western) law, thereby 'othering' it. The resulting knowledge system cements the cultural distance between the modern West and the traditional Orient in law, as this study shows.
The case analysed here concerns two women who became concubines in Nationalist China. The CFA imagines a binary division between pre-transplant customary Chinese law on the one hand, and post-transplant modern Chinese on the other, and presumes that traditional Chinese jurisprudence is irrelevant in understanding the legal meanings ascribed to the new legal codes imported from the West. Such a simplistic presumption and binary division has produced incorrect judgments on statutory interpretation of the transplanted legal codes practised in Republican China, as well as huge injustices to litigants, as the following landmark 2001 CFA judgment on the status of the two Nationalist-era concubines,
Suen Toi Lee v Yay Yee Ping, shows.
The chapter begins with the story of two deceased women, Sung So Chun and Chu Lee, whom a man named Sung Chuen Pao took as concubines in Shanghai in 1933 and 1945, respectively, following his marriage in 1929. Both Mr Sung's wife and other family members openly accepted and recognized the two women as his concubines. In 1951, Mr Sung moved to Hong Kong, where Mrs Chu joined him in 1952. Mrs Sung and Mr Sung's wife remained in Mainland China until their deaths in 1983 and 2000, respectively. Mr Sung and Mrs Chu died in 1985 and 1987, respectively.
The appeal before the CFA in 2001 concerned Mrs Chu's estate, with the court asked to determine who was entitled to it. The appellant, Suen Toi Lee, was Mrs Sung's daughter by Mr Sung. If both Mrs Sung and Mrs Chu had been Mr Sung's concubines, then the appellant was entitled to a share of Mrs Chu's estate as an 'issue' under the definitions provided by the Intestate Estate Ordinance of Hong Kong. If neither woman had been a concubine, then none of Mr Sung's children were entitled to any of Mrs Chu's estate, which would instead remain in her own family. Because she had no children herself, in this case her estate would pass to her siblings, whose interests in the case were looked after by Mrs Chu's niece, the respondent Yau Yee Ping.
The two women's union with Mr Sung was openly accepted by the man's family, including his wife, and one of them bore him a number of children. Yet, after their deaths, the women were rules by the CFA in 2001 to have, at best, enjoyed the status of mistress, thereby causing their issue to lose her right to succession within Sung's family under Hong Kong law. The critical issue that the CFA had to consider in this case was whether, as a matter of historical fact, the
Book of Family of the Republican Civil Code (Book of Family hereafter), which came into effect on 5 May 1931,
abolished the system of concubinage in Mainland China, rendering any union of concubinage created after that date (such as that of Sung and Chu) unlawful or invalid. The CFA judges ruled unanimously that the Book of Family had indeed abolished the system of concubinage, and therefore that it was unlawful for any union of concubinage to take place thereafter. This deprived the two now-deceased women of their legal status as concubines.
The CFA's judgment was based on three lines of reasoning: first, that the express provision against bigamy in the Civil Code was meant to prohibit the taking of concubines; second, that the Civil Code had created a new institution known as the 'household' to replace the old institution of 'concubinage', and through such creation concubinage was meant to have been abolished; and, third, that a published statement by the law drafter pointed to his intention that the transplanted Civil Code be used to uphold gender equality and eliminate concubinage in China by no longer mentioning concubines in the code. This view has become common law authority on the interpretation of the transplanted modern marriage law of Republican China, and will remain so until overruled by the CFA or a common law court of similar standing in the future.
Drawing on the latest scholarship of historians of the marriage regime in Republican China (1912-1949) and archival materials, this chapter argues that such judicial representation not only does not stand up to historical scrutiny; it actually distorts the way in which the marriage law was intended, understood and practiced in the Republican era. More importantly, it demonstrates that it was the Orientalist image of traditional Chinese law and custom that has been continuously produced and recycled in the common law knowledge system over the past century that contributed to the anomalies of the CFA judgment. In the following sections, the chapter rebuts each of the three lines of reasoning offered by the CFA in its ruling in
Suen Toi Lee v Yau Yee Ping, before turning to a succinct history of the common law knowledge system on traditional Chinese law exhibited in a set of judicial decisions, colonial reports and publications on Chinese law and custom relied on by the courts, as well as in common law textbooks that are still in use in law schools today. This analysis suggests the need for a revision of the judicial approach of Orientalising, and thus the neglecting of traditional Chinese jurisprudence in interpreting modern Chinese law. This chapter argues for a 'thicker description' of the legal reform process in China and perhaps in other parts of Asia. Such a description requires that imported legal codes and systems no longer be analysed as the simple displacement of old, traditional institutions by the implementation of Western-inspired and modern legal regimes. Instead they ought to be understood as the outcome of a more complex interplay between indigenous and foreign legal ideas and the way in which those ideas were discussed, interpreted and practised in their historical context. In that process, traditional ideas and practices were assimilated with the borrowed legal regime in a quest for legal modernity that fit particular political and societal needs.
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