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Beyond the Liberal Understanding

of the Chinese Family Law:
the Concubine Case Revisited

Ding Xiaodong*
Abstract:
The concubine case shows there are two different views toward the
individual and the family. Most legal elites view the individual as the basic
unit of the law and the society. To most ordinary people, family is an
ethical community that should be protected by the law. A close look at
history shows us three traditions in Chinese family law. These traditions
greatly shaped people's attitude toward family issues. The family was conceived more or less as an ethical community in Confucian tradition and
Socialist tradition. In the liberal tradition, the family was seen as a contract that had no difference with other business contracts; individuals were
the basic unit of a society. To have a fuller understanding of Chinese family law, we should look beyond the liberal understanding and have a more
comprehensive perspective towards Chinese family law.
Text:
I. INTRODUCTION
Mr. Huang Yongbin and Mrs. Jiang Lunfang married in 1963 and
only had an adopted son. In 1994, 31 years after their marriage, Huang
had an affair with a young lady, Zhang Xueying, and moved out with
*

J. S. D Candidate, Yale Law School, Email: pkuding@ gmail. com.

of the Chinese Family Law

her, using his retirement pension to support their new life together. On
April 22, 2001, Huang made a will to bequeath his property to mistress
Zhang, which was formally notarized by the Notary Public. After
Huang's death, mistress Zhang sued Jiang to claim her legacy. On October 11 , 2001, the court held that the will was against social, moral,
and legal principles, and thus denied mistress Zhang's claim for legacy.
The case soon aroused high-level public debate. Many lawyers, legal
scholars, and intellectuals criticized that the judgment was against the
law. Most common people, however, were very happy with the result.
In fact, after the outcome was announced in the court, about 1,500 people who audited the case stood up and applauded.
As in the west, marriage law and succession law are widely considered as a private law in contemporary China. Why such a private law
case became a hot debated public issue? In fact, this was not the first
time that a family law case attracted public attention. In 1980, China
amended its Marriage law and allowed a more liberal policy towards divorce. Yu Luojin, a female intellectual who had been persecuted in the
"Cultural Revolution", married a poor worker Cai Zhongpei in the end
of the "Cultural Revolution" period. In the following years, Mr. Cai
tried his best to take care of her. In 1980, Mrs. Yu filed for divorce on
the ground that she and her husband "lacked spiritual love". Her husband, however, denied that they lacked love and refused to divorce.
The case quickly attracted nation-wide attention and was debated fiercely. In a country that people usually didn't care about law too much, the
family law case seemed to be an exception.
It seems that the public didn't consider the family law as a mere
private law that should be dealt only by legal scholars. Neither did the
Chinese government in the past several decades. In April 13th, 1950,
half a year after the founding of People's Republic of China, the new
central government committee of P. R. C. enacted the Marriage Law. It
was the first law enacted by the new government, four years earlier than
the establishment of the Constitution. In a comment about the importance of Marriage Law, Chairman Mao Zedong said that" marriage law

Peking University Journal of Legal Studies

is a fundamental law and its importance is less to the Constitution".I 1 I

Again, after the Reform and Open policy of 1978, China quickly began
to draft a new marriage Law and passed it in 1980, two years before the
full revision of the Constitution in 1982. To the Chinese government,
the family law has enjoyed a quasi-Constitutional status in history.
In this article, I will do an in-depth study of the Concubine case
mentioned in the introduction. Since there was wide participation of debate in this case, an analysis of the case and the arguments of different
kinds of people will show two sides. It will help us to answer the questions mentioned above: Why is there disagreement between legal elites
and ordinary people? What is at stake? Combined with a historical analysis, it will enable us to understand why family law is considered as a
fundamental law and whether we should conceive it as a mere private
law in the future.
My argument is that there are two different attitudes toward the
family and the Chinese family law. For most legal elites, the individual
is the basic unit of society and family and marriage is a contract by individuals. Thus individuals could do whatever they like as long as there is
no prohibition in the law. For most ordinary people, however, the family is the ethical community which should be protected by the law. This
individualistic reading of Chinese family law is not a correct understanding of the law. In this article, I will conduct a historical analysis to
show that the former attitude is a product of the recent liberal tradition
among legal scholars and the latter is the legacy of Confucian tradition
and socialist tradition. To have a better understanding of Chinese family
law, we should look beyond the liberal understanding and have a more
comprehensive perspective toward Chinese family law.
Part I gave an introduction to the Concubine Case and the arguments of all sides. The debate was presented by legal scholars as a dispute between rule of law and rule of morality. Part II points out the
more fundamental disagreement between two sides. It was in fact the
disagreement about basic unit of the society: the individual or the family? Part III turns to a historical analysis to show how these two attitudes
[1I

-7 j

(Ma Qi),

riae,.LY-T)I P ' N#

( P [

p-

1959 *r-A0,M 81 -iff

M -*r]l

Chinese Revolution and Chinese Mar-

of the Chinese Family Law

developed. Based on a theoretical and historical analysis, Part IV studies the family property law and succession law, and shows the different
traditions and contradictions in Chinese family law. Part V draws a conclusion about Chinese family law and the implications for the China's
struggle to build an effective legal system.
11. LAW V. MORALITY? DEBATING THE CONCUBINE CASE

The court stated several reasons of denying mistress Zhang's claim

for legacy. First of all, Mr. Huang's bequeath violated law and infringed his wife's right to inheritance. Mr. Huang and Mrs. Jiang were
couples that registered at the Civil Affairs Bureau and their marriage was
recognized by the law. According to Article 24 of the marriage law,
"husband and wife shall have the right to inherit each other's property".
The right to inherit each other's inheritance was a confirmation of the
marriage relationship. Since Mr. Huang's will infringed Mrs. Jiang's
right to inheritance, it was invalid.
Second, the will was itself a byproduct of an illegal act. According
to Article 3 and 4 of the Marriage law, "cohabitation of a married person
with any third party shall be prohibited" ; "husband and wife shall be
faithful to and respect each other". Mr. Huang did not divorce with
Mrs. Huang but cohabitated with a young lady. The cohabitation was a
clear violation of Marriage Law and the byproduct of the cohabitation
should accordingly be announced as illegal.
Third, succession law was a branch of civil law and should not
contradict social morality and legal principles. Article 7 of The General
Principles of the Civil Law of the People's Republic of China stated that
"Civil activities shall have respect for social ethics and shall not harm
the public interest, undermine state economic plans or disrupt social
economic order. " Article 58 stated that "civil acts that violated law or
the public interest" shall be nullified. Since Succession Law and Marriage Law are ordinary law and their validity is inferior to the General
Principles of the Civil Law, the court should apply the General Principles of the Civil Law to settle the case.

Peking University Journal of Legal Studies

The dominant opinions among legal scholars and lawyers were

against the decision of the court. 21 Most of them cited Article 16 of the
Succession Law to argue that Mr. Huang had the right to bequeath his
property to anyone else. According to Article 16, "A citizen may, by
means of a will made in accordance with the provisions of this Law,
dispose of the property he owns and may appoint a testamentary executor for the purpose. A citizen may, by making a will, designate one or
more of the statutory successors to inherit his personal property. A citizen may, by making a will, donate his personal property to the state or
a collective, or bequeath it to persons other than the statutory successors. " In the Succession Law, there was no article stating that an individual could not bequeath his/her property to his concubine.
Legal scholars also criticized the legal reasoning of the court based
on different arguments. First, legal scholars and lawyers argued that the
marriage law was irrelevant in this case. Professor Xiao Han, for example, argued that this was a specific succession case and was marriage
law was irrelevant. If marriage law could be applied in this case, then
why not The Elder Law which aimed at the protection of the rights of
the elders, or even Environment Law.C 31 Another Legal Scholar, He
Bin, argued that illegal cohabitation and the inheritance were two unrelated act. The legality of the will should not be influenced by the fact of
cohabitation. I 4
Another related argument was that Succession Law was a specific
law and thus should have priority over Marriage Law and The General
Principles of the Civil Law. According to these scholars, it was widely
accepted in the jurisprudence that when specific law contradicted with
2 ] Apart from those scholars who kept silence on this case, only one female legal scholar Fan Yu supported the court's decision. Other scholars and lawyers, the total number would
approximately exceeded one-hundred, were all against it. In fact, the choice of keeping silent by
some scholars on this case was proof of the dominant attitude. In the Chinese academic environment, scholars would try their best to disagree with the mainstream opinion.
[3
(Xiao Han),
3,
Aj~4f y
T I :f
L
(The Nullified Succession Law: A Comment on the Procedure and Substance of Zhang Xueying
v. Jiang Lunfang) ,
2 %% 1
,
2002 lrNJ
[4
{PJ4(He Bing),
HY :t) " _-MJ"
i
(The Sad Gaze From
the Haven: An Analysis of the Concubine Case) , (
$ 1]H J))2002 * 4 )] 7 l ,

of the Chinese Family Law

general law, the former should prevail. [

They also cited the Legisla6
tion Law to support this argument.
The third argument was to appeal to individual property rights. Article 13 of the Constitution states that" the state protects the right of citizens to own lawfully earned income, savings, houses and other lawful
property. The state protects by law the right of citizens to inherit private
property. " According to Professor He Bin, "the legacy was the fruit of
hard labor, the will was the last words of his life, is there any reason to
deprive the right of an individual to dispose his property?" 71 Wang Yi,
a leading public intellectual with a legal background, commented that
this is a test of the government's commitment to the protection of individual property rights. He also argued that the protection of individual
property rights should be regarded as the highest morality of the society. 81
The forth argument was the most common one. It accused the court
of applying morality, not law. According to these scholars, citizens
could do whatever as long as law did not prohibit it. The law had clearly listed the conditions under which a successor would be disqualified to
inherit and there was no provision that mentioned concubinage. 9 The
Succession Law had clearly shown that all members could be designated
as inheritors apart from those listed in the law. Since the law was very
clear on this issue, the court should not have cited the general principles
in the General Principles of the Civil Law. General principles could only

[ 5]

PQJ

( Yin Xiaohu)

fiw lk) (On Consiitutionolisrn)

LA? )t*

LHAt 2006

lrA&, Chapter 7; Xiao Han, supra note 3.

[ 6 ] Article 83 of the Legislation Law stated that "If the special provisions and general
provisions of laws, administrative regulations, local regulations, autonomy regulation, separate
regulation and rules formulated by the same organ are inconsistent, the special provisions apply. "
7
{]J,(He Bing) , supra note 4.
8 1 f-11(
Wang Yi) ,
I
(The Fragile Property Rights) ,(21 fB
E
j}2001 I 12 A 3 H
[ 9 ]

According to Article 7 of the Succession Law, A successor shall be disinherited upon

his commission of any one of the following acts:

(2)

( I ) intentional killing of the decedent;

killing any other successor in fighting over the estate;

maltreating the decedent; or (4)

(3)

a serious act of abandoning or

a serious act of forging, tampering with or destroying the will.

Peking University Journal of Legal Studies

be applied when there was no clear provision to be applied in a
case. ['01
There were also debates about the case facts. Some people thought
that there was no difference of the cohabitation in this case and prostitution. They pointed out that Mr. Huang was over fifty years old when he
met Zhang. In an undeveloped city with such a poor standard of living,
a fifty-year-old man would look very old and unattractive. Mrs. Zhang,
by contrast, was only 31 years-old and was attractive. It would be impossible to imagine that their cohabitation was based on love. Like prostitution, they thought that the beginning of the cohabitation was an exchange of sex and money.
Most people didn't hold such an extreme view. They admitted that
Mrs. Zhang was not a barefaced prostitute and that she had emotional
affection toward Mr. Huang. After all, Mrs. Zhang cared Mr. Huang
for many years,

including the years before his death.

She was not a

woman that only desired for Mr. Huang's money. However, in most
people's opinion, Mrs. Zhang was a destroyer of the family and should
be condemned. Mr. Huang's wife, by contrast, was a victim. She was
old, no longer attractive, and penniless.
Mr. Huang was considered by most people as the villain. He deserted his old wife and lived an irresponsible life. Some of them also
pointed out that a large part of his property was in fact inherited from his
wife's parents many years ago. Although his wife was not kind to him,
to have an affair with a young lady was definitely a violation of social
ethics. It was a matter of right and wrong and the practice of concubinage was an unpardonable assault on Chinese ideals. III
To some legal elites and some people who criticized the decision of
the court, the cohabitation was not based on sex and money. The quarrel between Mr. Huang and his wife before their separation showed that
[10] * i (Xiao Han), supra note 3; kmL(Zhu Yuan) ,
the Concubine Case), M7 J
) 2001 I 11
15 H ;H]f
Mingrui) , (0

+l ,, P

M -f:

-I

,' jyln

4)

,
%:E (Three doubts on
,H]-(
Xu Mingyue & Cao

( A Different Reading of the Con-

cubine Case: a Reply to Fan Yu) , (1fj)}

%2 .4, , K )2002

IF ,
[ II
For a Comparative View, See William J. Bennett, The Death of Outrage: Bill Clinton and the Assault on American Ideals, Free Press,

1999.

of the Chinese Family Law

they lacked love toward each other. The cohabitation, by contrast, was
a proof of love between the two. Since they lived together for so many
years, their relationship should have been considered a de-facto family.
III. INDIVIDUAL V. FAMILY: THE IMAGINATION
THE BASIC SOCIAL UNIT

OF

To some extent, the Concubine case is similar to the Elmer Case

citied in Ronald Dworkin's book Law's Empire. 12] In the Elmer Case,
Elmer murdered his grandfather to prevent him from changing the will
and leaving him without an inheritance. The issue was whether Elmer
was entitled to the inheritance his grandfather's last will provided.
Dworkin's analysis in Law's Empire is helpful here. It was not the vagueness of law that led to the disagreement of the judgment. Rather, it was
the "theoretical disagreement" of basic principles that led to the disagreement in the law. 13] To have a deeper understanding of the dispute,
we should turn to the "grounds of law" or people's basic disagreement
about family law.
In the legal elites' opinion, the individual is the basic unit of all
law and individualism is a universal value. Article 1 of the Succession
Law stated that" this Law is enacted pursuant to the provisions of the
Constitution of the People's Republic of China with a view to protecting
the right of citizens to inherit private property. " Article 3 of the Succession Law stated that " estate denotes the lawful property of a citizen
owned by him personally at the time of his death. " The purpose of enacting Succession Law and definition of the estate showed clearly that
the individual property right was the main concern of the
Succession Law.
It is true that the Succession Law would deprive the right to inheritance under several conditions, such as intentional killing and intentional
abandoning of the decedent. However, these restrictions on the inheritance rights were aimed at protecting the individual property rights and
individual welfare. Apart from these restrictions, there was no provision
[12]
[13]

Riggs v. Palmer, 106 N. Y. 506 (1889).

Ronald Dworkin, Law's Empire, Harvard University Press, 1986, pp. 15-22.

Peking University Journal of Legal Studies

that restricts the free exercise of the individual property. In fact, the
Succession law stated that a"citizen may, by making a will, donate his
personal property to the state or a collective, or bequeath it to persons
other than the statutory successors. "
Legal elites' emphasis on the individual rights was not only based
on a textual reading of law, it was also influenced by a libertarian view
of the society. While liberals in the west largely criticized the unrestricted property rights and free exercise of contract, liberal scholars in China
viewed individual property rights as sacred. The right to bequeath one's
property was seen as a typical exercise of the individual rights, which
could not be influenced by the public sphere. Also, many scholars argued that the protection of the individual rights was a historical trend toward civilization.
Since individualism was conceived as an incontestable truth, and
thus legalism seemed to be a natural conclusion. [4 There was no ethical
community in the legal elites' ideas and morality was considered only as
an illusion. In fact, one of the most cited books was a book called The
Collapse of the Moral Idealist Country, which argued that the pursuit of a

high moral standard by a country would lead to tyranny. ' 51 Individualism, by contrast, was considered as a possible way of fighting against
the authoritarian state. Thus, in this case, legal elites viewed Mr.
Huang's act as a completely private matter that must be decided according to an individualistic understanding of law. The value of marriage or
family should never play any role in deciding a case. In fact, the decision of the court was thought as a typical case of mobilizing the public
emotion-or morality as people would call it-to obstruct the free exercise of individual will.
In most ordinary people's understanding, however, the individual
was not the only subject of Chinese family law and individualism was
not the highest value. All Constitutions enacted or amended after the
[14] See generally Shklar, Legalism: Law, Morals, and Political Trials, Harvard University Press, 1986.
[15] *
"( Zhu Xueqin) , (j'O
f4LR
(The Collapse of the Moral Idealist
State) ,EgX'N 1994 *&,

of the Chinese Family Law

founding of P. R. C. have stated the duty of supporting the old and the
young within a family. Article 49 of the current Constitution states that
"parents have the duty to rear and educate their minor children, and
children who have come of age have the duty to support and assist their
parents ....

Maltreatment of old people, women and children is prohib-

ited". The duty that is clearly stipulated in the Constitution showed that
individual rights are not absolute. Individual rights must be subject to
the duty to support family members.
Other articles of the Marriage Law and Succession Law also
showed that individualism was not pursued by law. Article 2 of Marriage Law stated that" the lawful rights and interests of women, children
and old people shall be protected. " Article 4 of Marriage Law stated
that "husband and wife shall be faithful to and respect each other. Within the family, family members shall respect the old and cherish the
young, help one another, and maintain equal, harmonious and civilized
marriage and family relations. "
While these articles were viewed by legal elites as clich6 motions
by the government, they reflected ordinary people's fundamental attitude
toward the family. If an old person is found wandering on the street or
alone in the hospital, people will blame their son or daughter for their
lack of filial piety. 161 If a husband dares to desert his wife and cohabitate with another woman, people would feel extremely angry towards
the man even if he claimed to have fallen in love with the other woman.
To most people, family is an ethical community that should be protected
by the law. Individualist rights and freedom does not have a higher value than the protection of family and marriage.
In individualistic and contractual thought, an individual only enters
into a contract once he/she marries. He/she would only be obligated to
do whatever the contract clearly states. Apart what is stated in law, he/
she could do whatever he wanted. Different from legal elites' opinion,
most ordinary people did not view family as a contract that could only
be regulated by legal provisions. The individual was always deeply embedded in the family community. One was the son or daughter of a family when one was young. When one was of age to have a family of his/
[16

Amy Chua, Battle Hynn of the Tiger Mother, Penguin Press, 2001.

Peking University Journal of Legal Studies

her own, he/she was still a member of the family community and would
still be expected to protect the integrity and harmony of the family.
Thus, most ordinary people have always viewed the family as a
basic unit of the law. In their opinion, the individualist view held by
most legal elites was biased or immoral, not universal and impartial.
There were two fundamental worldviews toward society: the legal elites
viewed the family as a contractual organization formed by individual
will; ordinary people viewed the family as an ethical community where
one finds one's place and meaning. While the former emphasized the individual freedom under the law, the latter viewed individual freedom as
subject to the goal of ethical building.
If we have a clear understanding of these two different ways of
thinking, we could understand people's two different attitudes toward
the Concubine Case. To most ordinary people, concubines are one of
the greatest dangers to the building of the family community. In a world
full of temptation, people would easily fall in love or pursue sex with
others, losing commitment to the family. Statistics supported this view.
According to a survey conducted in 2001 , 75. 8% of people thought that
law should punish sex outside marriage, 94. 2% of people thought that
law should punish those who practiced bigamy or concubinage. 171
IV. CONTRACT OR COMMUNTY BUILDING: THREE TRADITIONS IN CHINESE FAMILY LAW
Questions still remain: Where do these two different ways of conceiving the basic unit of the society come from? Why do ordinary people
view the family as an ethical community that should be protected by
law? And why Chinese family law simultaneously expressed of the individualist value and the family value? To have a deeper understanding of
these questions, we have to look at the history to find three traditions in
Chinese family law. These traditions greatly shaped people's attitude toward family issues.

[17] {"
Marriage Law), TIBIH

R*TL

(Materials on the Revising oj'Chinese

(Wang Shengming & Kong Lihai ed. )
2001

of the Chinese Family Law

In the Confucian theory, family is the starting point of constructing

a society. The family, rather than the individual, is seen as the basic
unit of the society. According to Confucian theory, there are five basic
relationships within a society: ruler and subject, father and son, husband and wife, elder and younger brother, friend and friend. Out of the
five relationships, three were family relationships. Confucianism believes that the formation of a harmonious family community would eventually lead to harmony in society. If there is a harmonious and just order
within society and everybody is cultivated as a good person, the state
would also be just.
The purpose of marriage is to build and maintain the family community. Firstly, marriage ensured that the biological family line could
be preserved and continued. One of the biggest expectations of marriage
was that it could bring a male child to the family in the future. But marriage not only enabled the family to have children and continue its family line, it also stabilized institutional arrangements. As one of the most
distinguished Chinese anthropologists, Fei Xiaotong, pointed out, "there
is no natural guarantee that a child will be brought up by his/her father
and mother together". The biological parents may give up their responsibility of raising their child. Only by introducing a stable marital relationship would a child both have a father and mother and be brought up
naturally. [ 18 ]

In addition, marriage is itself a process of ethical learning and ethical building. Through marriage, a wife becomes a new member of her
husband's family and gradually learnes her rights and duties. Contrary to
the modern understanding of the contract, which is formed in a single
moment, marriage in Confucian theory is a life-long commitment to fulfill one's commitment to a family. In Confucian theory, if one can fulfill one's duties in a family, then it is more likely that one will behave
correctly in the society. As the Confucian classics Liji point out, "The
difference between men and women leads to the righteousness of cou[18]
production) ,

Lfi(Fei

Xiaotong), (t1
LPP-INffl
NL#-i2006 *rA ,M 129 if,,

(Rural China The Institution of Re-

Peking University Journal of Legal Studies

pies, the righteousness of a couple leads to the benignity of fathers and

sons, the benignity of fathers and sons leads to the justice of the ruler
and the subjects.

"19]

Like secession from a country was only granted at extreme circumstance, divorce is also very difficult in a Confucian China. 20 Divorce
by mutual agreement is allowed, but it is strongly discouraged. In theory, the husband alone has the right to divorce. He is granted the right to
divorce his wife under seven conditions: barrenness, wanton conduct,
neglect of the husband's parents, loquacity, theft, jealousy, and chronic
illness. However, there are also restrictions of the husband's right to
terminate marital relationship. If the wife has no father or brothers living
to whom she could be sent, or she had worn mourning for three years
for her parents-in-law, or the husband had risen from poverty to wealth
while she was his wife, the husband could not terminate the marriage. 21 There is a strong belief in Confucian theory that righteousness
and harmony can be restored through teaching when there are problems.
Only when the purpose of building a harmonious family community becomes impossible might divorce be granted. In fact, under Confucian
law, the local magistrate might force a spouse to divorce when there is
serious domestic violence, especially violence towards the elders in the
family. Confucianism calls this kind of violence, "Yi Jue" or "breaching the bond of righteousness".
Here it is worth mentioning the practice of Concubinage in traditional Chinese society. In traditional China, the purpose of having a
concubine was not for sexual enjoyment but for the continuance of the
family line. In most cases, only when the wife in a family could not
give birth to a male child would a family consider having a concubine.
The concubine was seen an integrated part of the family and enjoyed a
special status within the family community. In reality, there were not
many people who practiced Concubinage in traditional society. Most
poor families could not afford to have a concubine and there were also
[191
'NLi) (Book oj'Ri(s).
[20] For an interesting comparison of family relationship and state relationship within a
country, see Sanford Levinson, Constitutional Faith, Princeton University Press, 1988.
[21]
1WHll(Qu Tongzhu),
rp PqQ
@
&
( Chinese Law and Chinese Society),

1981 *N

M 124-128 f, ,

of the Chinese Family Law

other ways to maintain and preserve a family, such as having a stepson

or acquiring a son-in-law. 22]
The socialist revolution in China brought an end to Confucianism's
dominant role in China. After the CCP came to power in 1949, it quickly enacted and promulgated a revised marriage law. It accused the feudal marriage system of having marriage based on arbitrary and compulsory arrangements. It promoted free choice of partners, monogamy, and
the equality of men and women. Aimed to build a modern socialist
state, the traditional family was reformed to meet the needs of producing citizens with socialist virtues. While the state was seen as an extension of the family in Confucian theory, the state was seen as the ethical
community that had the highest virtue in Socialist theory. In Socialist
theory, the family is also modeled to be the seedbeds of socialist virtue. [231
Although state-building and Socialist reform was the CCP's main
concern, the family was still considered to be an ethical community. In
the Classical Marxist view, family was an institution closely related to
private property and to its exploitation. In The Origin of the Family, Private Property, and the State, Friedrich Engels stated that the family in

the primitive ages was a communal institution that had no oppression.

The emergence of private property brought monogamy and also the inequality of men and women. Engels thought that the family, together
with private property, would eventually disappear in future history. [24]
The Chinese Communist Party(CCP) however, did not embrace such a
radical aim as to destroy the institution of the family. It only tried hard
to reform the family according to socialism. Years of practice and theoretical debate had taught the CCP to adopt a Chinese version of Marxism
that combined Scientific Marxism with the fundamental realities of China.
[22]

Kathryn Bernhardt,

Women and Property in China: 960

1949,

Stanford University

Press, 1999.
[231

Seedbeds of Virtue: Sources of Competence, Character, & Citizenship in American Socie-

Mary Ann Glendon & David Blankenhorn ed. ,1995.

[24]

Friedrich Engels,

finder Press, 1972.

The Origin of the Family, Private Property, and the State, Path-

Peking University Journal of Legal Studies

The change of ideology brought about a change in the practice of

marriage law. In the 1950 Marriage Law, practices such as bigamy,
concubinage, child betrothal, interference in the remarriage of widows,
and the exaction of money or gifts in connection with marriage, were
prohibited.[25 These practices were considered as violating the free
choice of individual and gender equality. Also, civil registry was required for a valid marriage. Marriage without the recognition and blessing of the state would be considered as invalid. Somewhat like Catholicism, marriage was considered as a relationship between two lovers in
service of a higher goal. E26] The couple should share the same ideology.
Love was not possible if one of them had a feudalistic ideology. As one
newspaper put it, "real love cannot exist between a feudalistic person
and a progressive person" .[27] In the socialist ideology, there are exploitative classes and classes are were exploited. The former mainly referres to former landlords, rich peasants, reactionaries, rightist, and the
bad people, and the latter mainly referred to poor and middle peasants,
workers, soldiers. According to the CCP's theory, people's ideologies
are largely determined by their class. In a new society, the exploitative
classes should be reformed to have progressive ideology. Love without
considering ideology is thought as mere love of the body or based on alienated human nature. [ 28 Only people who have a socialist ideology and
who hold a deep sympathy with the proletariat or the poor can develop a
true love toward one-another.
Since the feudal marriage system was based on arbitrary and compulsory arrangements, divorce could be granted on a party's petition; a
[25
The law didn't state to whom an individual should not marry. But in practice, people
were encouraged to marry the progressive. In a case that was selected as a guiding case to implement the new marriage law, the daughter of a peasant wanted to marry the son of a poor peasant, but the local peasant association didn't approve it. They appealed to the court and the court
ruled that the peasant association could not coerce them not to marry. However, "to maintain
the purity of the peasant class, the peasant association should persuade them not to marry before
the girl was reformed to become a progressive person. " ((Rffl& rr)}
(An Compile of
Answers to Questions Concerning Marriage Lai)
[26]

X -LLh &,j4

1951 V

,c

John Witte, From Sacrament to Contract: Marriage, Religion, and Law in the Western

Tradition, Westminster John Knox Press, 1997.

[27] (M
Jy
4H} (Nanfang Daily) ,1952 V 2 J] 13 H
[28] Karl Marx, Feuerbach's The Essence of Christianity ( 1841
(1844) , The German Ideology ( 1845).

The Ego and Its Own

of the Chinese Family Law

marriage could be nullified if it was considered as bigamy or polygamy,
or there were parental impositions. It was thought that in these cases it
would be hard to develop true love. In a case involving a child betrothal
marriage, the court granted the divorce on the ground that"the feudal
marriage system is both irrational and immortal ...

for this kind of ma-

rital relationship to continue would only add to the emotional suffering

of both parties"

29

1.

The socialist reform of Chinese family law not only rejected feudalistic family law but also rejected" capitalist" family law. According to
the CCP, capitalist law, which seemed neutral on first glanced, would
lead to irresponsibility of family members and create de facto inequality
between men and women. After the revolution, many poor peasants and
workers came to power and wanted to divorce their illiterate and unattractive wives.

These kind of petitions were considered as based on a

bourgeois attitude of "liking the new and tiring of the old" ( Xi Xin Yan
Jiu) and should not be granted.
To sum up, family law in Socialist China could neither be considered as a contract or as a means to build a perpetually ethical community. It emphasized individual freedom in marriage but refused to accept a
liberal attitude toward marriage and treat it as a private law. As an article in the People's Daily put it, "we cannot treat marital relationship,
family relationship, marital relationship, parent and child relationships
as purely personal relationships and can do whatever what we want. "
On the contrary,

" the state,

society,

family and the individual are

closely related; the individual's act in all respect should be built on the
socialist new morality and new thinking;

we should not distinguish

clearly of the so-called public life and private life. ,,

301

Family is still an

ethical community but it should be reformed to meet the value system of

the state. In some time, the reform could even lead to the destruction of
some family communities.

In the Cultural Revolution,

members of

some families were encouraged to accuse each other of who were suspicious of being a "rightist" or a counterrevolution.
[29]

Cf Philip Huang, Chinese Civil Justice: Past and Present,

lishers, 2010, p.
[301

1 11

( )[ K ]

.
}(People's Daily),1954 *

7 )] 30

Rowman & Littlefield Pub-

Peking University Journal of Legal Studies

In 1978, China launched its Reform and Open policy. The class
struggle between the exploitative class and class that was exploited was
no longer considered to be a key issue. The government began to treat
all its citizens as equals and de-emphasized the political status of the individual. In family law practice, the political status of a person no longer played an essential role in marriage, divorce, or other issues. In
1980, the government revised the 1950 Marriage Law and embraced a
more liberal view toward marriage. Article 25 states that when one party
insisted on divorce and appealed to the people's court, the people's
court should grant the divorce "in case of complete alienation of mutual
affection". In the 1950 Marriage Law and in legal practice before 1978,
"alienation of mutual affection" was not a legal cause for divorce.
Although family law was more liberal than traditional society and
socialist society, in most people's opinion, the family was still conceived as an ethical community that different from contract. In the
meantime, socialist ethics still played an important part in understanding
family and marital relationships. The Yu Luojin case mentioned above
showed that people still viewed class as a factor in family relationships.
In this case, the female intellectual Yu Luojin married a poor worker
Cai Zhongpei in the Cultural Revolution period and received much help
from him. After 1980, she filed for divorce on the ground that she and
her husband"lacked spiritual love". Although Mrs. Yu was a victim of
the Cultural Revolution, most people still criticized Yu for her demand
of divorce. In most people's idea, "lack of spiritual love" was only an
excuse for a selfish and irresponsible way of "capitalist life. " Marital
relationships should not be considered a contract that could be breached
at will.
As late as the 1990s, this was still the dominant view in society. In
an authoritative Comprehensive Explanations of China's Law published
in 1992, marriage was depicted" not as a kind of civil contract, but rather a husband-wife relationship that is affirmed by law, including both
property relations and human relations""31 ]. However, as market and
[31
Law),

( +i

)
.

1992

_X t
510 W01,
5:,

(An

Encyclopedia of Explanation of Chinese

of the Chinese Family Law

capitalism played a more important role in China, the individualistic
view toward marriage and family began to win support from more intellectuals, especially legal scholars. In 2001, Marriage Law was amended
again to "meet the need of development of society and the market".
The new Marriage Law, differed from the 1980 Marriage Law, considered the family as a contract that is similar to a corporation. It listed in
detail the joint possession of property and separate property. For example, prenuptial property and the inheritance that goes only to the husband or wife as specified in a will would be considered as separate property. Marriage was considered as a contract that could be ended in any
time. Marriage Law,

accordingly,

was seen as a mean to settle the

ownership of the property.

The individualistic and contractual thinking was more obvious after
2001.

After the Marriage Law was amended,

the Supreme People's

Court of China released three judicial interpretations on Marriage Law.

These interpretations mainly focused on how to separate property in divorce cases. They listed in detail the ownership of the property to deal
with potential divorces in the future. It was thought that once a couple
got divorced, both parties could take the"weapon of the law" to protect
their legal rights from the other party. Thus,

everyone should foresee

the potential future divorce and be well prepared to deal with the danger, as people do in business. For example,

according to Article 7 of

Judicial Interpretation Three, if the postnuptial immovable property was

purchased with funds from parents of one party and its ownership was
registered under the name of the party, such immovable property shall
be determined as personal property. The individualistic and contractual
thought was to the extent that in the first draft of the Supreme People's
Court's Judicial Interpretation Three, it stated that if a husband or wife
was not at home for one night, the other party could demand compensation of mental damage.
V.

RETHINKING

CHINESE

FAMILY

PROPERTY AND

SUCCESSION LAW

A close look at history shows us three traditions in Chinese family

Peking University Journal of Legal Studies

law. The family was conceived more or less as an ethical community in
Confucian tradition and Socialist tradition. In the liberal tradition, the
family was seen as a contract that had no difference with other business
contracts; individuals were the basic unit of a society. The fundamental
difference of perceiving the individual and the family thus leads to the
different modes of succession law.
In Confucian China, family law and succession law was to maintain the family and to bring harmony to the family. The right-holder of
the property was the family, not the individual. In fact, there was no
such conception as individual property. The conception of individual
property was much more of an anachronistic reading of Confucian family
law. For example,

a scholar compared Confucian family law and Ro-

man family law and argued, "The father has control of the family property for life and can waste or squander it as he pleases.

"[,321

Another

leading Japanese scholar, Shiga Shuzo, argued, "A consistent rule in

the legislation was that as long as the father was alive, division of the
household's property could take place only in obedience to his wishes. "I'33

These arguments did not fully understand the internal logic of

Confucian family law. In ancient Chinese families, the householder may

have had a higher authority in disposing the family property. But his authority was not exclusive and the property was not his personal possession. Every member who would start a new family in the future had a
share of family property. The householder would never be expected to
donate or bequeath a large amount of money to others since it would violate the interests of the family. In Confucian family law, the succession happened when the son of a family started a family of his own. He
and his brothers could then get an equal share of the family property. As
long as the death of a family member would not lead to a change in the
family community, succession would not happen at that moment. In
practice, the testament was rarely used to deal with the family property.
The socialist reform of family law didn't change the practice of
China in Law and Commerce, The Macmillan Company,

[32]

T. R. Jernigan,

[331

Shuzo Shiga, Family Property and the Law of Inheritance in Traditional China, in

1905, p.

95.
Chinese Family Law and Social Change,David C.

Buxbaum ed. , 1978,

p. 135.

of the Chinese Family Law

family property and succession law. At the first glance, the newly enacted Marriage Law adopted a more individualistic attitude toward family
property. Article 10 of the 1954 Marriage Law stated that"husband and
wife have equal rights in the possession and management of family property". Article 12 stated that "husband and wife have the right to inherit
each other's property". But it also stated that parents had the duty to
rear their children and to support the elders in the family. In practice,
the government mainly relied on customs and socialist ideologies to deal
with cases involving family property and succession. The family was
still the right-holder of the property and the basic unit of succession.

Before 1978, most legal scholars were obliged to accept the socialist reform and reeducation. Laws enacted before 1978 all followed the
same ideology with the state. After 1978, however, legal scholars gradually accepted the legal system imported from west, especially German
civil law. Civil law was seen as a legal science that should be enacted
and interpreted by legal scholars alone.
The 1985 Succession Law was primarily drafted by legal scholars.
On the one hand, this law clearly embraced an individualistic understanding of Succession Law. It stated that the legacy was the lawful
property of a citizen owned by him personally at the time of his death,
which consisted of one's income, houses, savings and articles of everyday use, forest trees, livestock and poultry and other lawfully property.
Also, the succession was considered as an act that carried out in a single
moment. Article 2 of the law stated that" succession opens on the death
of a decedent". Before the death of a decedent, succession could not
begin. In the meantime, succession would complete immediately if
there were no disputes.
On the other hand, there were also many restrictions on the individualism in the 1985 Succession Law. Article 12 stated that" widowed
daughters-in-law or sons-in-law who have made the predominant contributions in maintaining their parents-in-law shall, in relationship to their
parents-in-law, be regarded as successors first in order". Article 13 stated that "at the time of distributing the estate, successors who have made
the predominant contributions in maintaining the decedent or have lived

Peking University Journal of Legal Studies

with the decedent may be given a larger share ... successors who had

the ability and were in a position to maintain the decedent but failed to
fulfill their duties shall be given no share or a smaller share of the estate" . These articles offered a different understanding of the succession
law. First of all, it meant that the right to inheritance was closely related to one's behavior before the death of the decedent. Succession opens
not on the death of a decedent but long before that. Second, it was natural that family members who lived together would "make the predominant contributions in maintaining the decedent". The succession would
then not likely take place outside the family. In most instances, the
family would still be the right-holder and the successor of the property.
Thus, there were two different fundamental principles underlying
the 1985 Succession Law: one treated the individual as the subject of the
law and succession realized at the moment of death of the decadent; the
other treated the family as the subject of the law and aimed to build an
ethical community. During 1980s, the two fundamental principles did
not cause too many issues since most people still shared the latter principle. It was after the 1990s when individualism gradually became the
creed of many people that many disputes emerged. The Concubine Case
was just one example that reflected the two different principles.
VI. CONCLUSION
The first conclusion that we may draw from the foregoing analysis
is that there are two different views toward the individual and the family. Most legal elites view the individual as the basic unit of the law and
the society. They believe that the movement of a progressive society is a
movement" Status to Contract". 34 Individuals could do what ever they
want as long as it is not prohibited by law. Since there is no provision in
the Succession Law which prohibits leaving the legacy to a concubine, it
is perfectly legal and justifiable to do so. Most ordinary people, however, view the family as a basic ethical community of the law and the society. They don't care about the law in everyday life. But they will
stand up to defend their interpretation of the law when there are cases
threatening the ethical value of the family. In their opinion, legal elites'
[34]

Henry Sumner Maine, Ancient Law, Beacon Press, 1963, p. 165.

of the Chinese Family Law

interpretation of law is far from neutral and impartial. The individualistic reading of the law and the society contradicts their deepest feeling toward the family and society.
A related conclusion is how to understand the Chinese family law.
Duncan Kennedy has argued in the Form and Substance in Private Law

Adjudication that there were "opposed rhetorical modes" and "a deeper
level of contradiction" in the contract law.["] He argues that the rules
are committed to individualism and the standards are committed to altruism. Kennedy's disclosure of fundamental contradictions is especially
true to contemporary Chinese family law. As we see in the above analysis, there are fundamental contradictions in the 1985 Succession Law
and there are different traditions in the Chinese family law. Contemporary Chinese family law is anything but a coherent nomos. [3 6 1 To have a
fuller understanding of Chinese family law, we should look beyond the
liberal view. This is not to say that we should abandon liberalism and
embrace Confucianism or Socialism. It only means that we should have
a more comprehensive understanding.
The study of Chinese family law also has some implications for
China's march toward the rule of law. China has launched its project of
rule of law for many years but still cannot build an effective legal system, let alone a strong belief in the rule of law. Most legal scholars ascribe the problem to the Chinese Communist party and its authoritarian
political control. This may be true in many cases but as we see in the
Concubine case, it is not the whole story. As long as legal scholars do
not pay attention to ordinary people's fundamental attitude toward the
law and the society, ordinary people will not care too much about the
law. Only when they find the law promoting the values they cherish will
they view the law as their own and take it seriously.

[35] Duncan Kennedy, Form and Substance in Private Law Adjudication,

Rez,.1685 (1976).
[36
Robert Cover, Nomos and Narrative, 97 Harv. L. Rez,. 47 (1983).

89 Han. L.