Women’s Choices under the Law: Marriage, Divorce, and Illicit Sex in the Qing and the Republic
This article examines separately Qing and Republican Chinese law’s constructions of women’s will, and uses each to illuminate the other. Qing law’s construction, though differing greatly from the Guomindang’s Republican law that modelled itself after the 1900 German Civil Code, nevertheless did not view women simply as passive entities devoid of will and choice, but rather as beings who chose between “consenting to” and resisting abusive treatment—what this article terms “passive agency.” That codified construction is most clearly revealed in a series of provisos centering on the word he,“consenting to.” Guomindang law, by contrast, on the basis of imported Western laws and legal principles, constructed women as completely independent entities possessing an autonomous will. This article also examines actual legal practice on the basis of 193 (what are termed by archivists) “marriage-related” (or “marriage and illicit sex”) cases collected by the author. What is surprising is that although Qing law made harsh demands on abused women (they must resist at any cost, lest they be suspected of the criminal offenses of consenting to illicit sex, to being seduced, to being abducted, and the like), it also gave them important protections, whereas the Guomindang’s “modern” constructions of women eliminated those protections. On balance, Qing law actually afforded women who were in weak positions more protection than Guomindang law.
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