Abstract
In a paper about societal customs , I came to notice, from statistics, that in modern China, both legislators and jurists tend to ignore customs, and thus, customs are underestimated in statute, although due to the demands of the modernization of society, this kind of underestimation is rational in a certain way.
The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depends very much upon its past.
—Oliver Wendell Holmes, Jr. (Oliver Wendell Holmes, Jr., The Common Law, Little, Brown, and Company, 1948, p. 2).
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Suli: “Custom in Law of Modern China—Perspective of Statute,” Law Review, Issue 2, 2001.
- 2.
Michel Foucault, The Order of Things: An Archaeology of Human Sciences, Random House, 1970.
- 3.
This issue is complicated and requires more careful empirical research. Normally speaking, ordinary people always care about actual legal restriction and pay more attention to the actual legal results with which they are closely related. However, theoretically speaking, stipulation of statute can still provide a certain justifiable basis for the people’s proposition, the stipulation of statute therefore can still influence judiciary, and people will thus still care about the proposition of stipulation of statute with a precondition that the channel of legal information keeps clear.
- 4.
Yang Liu: “Indistinct legal products—observation at two cases of mediation at basic-level court,” Peking University Law Review, vol. 2, Issue 1, 1999.
- 5.
Fei Xiaotong: Rural China, SDX Joint Publishing Company, 1985, pp. 53ff.
- 6.
Same as note 5, p. 59.
- 7.
Qu Tongzu : Laws in China and Chinese Society, Zhonghua Book Company, 1981, pp. 124–128.
- 8.
Please refer to Mary Ann. Glendon , Abortion and Divorce in Western Law, Harvard University Press, 1987; Richard A. Posner and Katharine B. Silbaugh, A Guide to America’s Sex Laws, University of Chicago Press, 1996. Normally speaking, the reasons for fault divorce are adultery, abandonment, and violence, among which adultery ranks the first.
- 9.
For example, although France eliminated the crime of adultery in 1975, Article 222-7 of French Penal Code (translated by Luo Caizhen, China People’s Public Security University Press 1995) stipulates that “the sexual assault crime (mainly adultery—my word) is sentenced to 5 years of imprisonment and a penalty of 500,000 franc.” Italian Penal Code (translated by Huangfeng, China Politics and Law University Press, 1998) still keeps Article 559 and 560 about adultery punishment, although these two articles have been confirmed by the court as a violation of the constitution and thus not be executed any more. Spanish Penal Code of 1971 (translated by Pan Deng, China Politics and Law University Press, 2004) has a special chapter on “crime of adultery” with especially detailed stipulation in which adulterous men and women will be sentenced to a short-term imprisonment of 6 months–6 years. In the USA, laws of almost one third of the states, including Washington DC where the capital is situated, still stipulate that adultery is a minor offense, although those laws can be applied to nobody and thus become “dead words” (quote from a secondary source, Richard A. Posner, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, Harvard University Press, 1999, p. 35.
- 10.
For example, Italian Penal Code and Spanish Penal Code stipulate that for an adulterous husband, only when he publicly marries a concubine or has casual sex can he receive punishment equal with an adulterous wife. French Penal Code in 1810 stipulates that an adulterous wife will be sentenced to an imprisonment from 3 months to 2 years, while a man keeping concubine will be sentenced to a penalty of 100–2000 franc. As for situations in France, please see Antony Copley, Sexual Moralities in France, 1780–1980: New Ideas on the Family, Divorce, and Homosexuality: An Essay on Moral Change, Routledge and Kegan Paul, 1989, p. 87.
But this seemingly “discrimination” has its reason in biology. For a woman having illegal love affair, she might get pregnant and give birth to a baby, which will give her husband not only a burden of raising other person’s child but also an opportunity cost of possibly losing his own child. However, a husband having illegal love affair will not bring about such cost to his wife normally. Please refer to Richard A. Posner, Sex and Reason, Harvard University Press, 1992, pp. 183–186.
- 11.
See Posner, Sex and Reason for theoretical analysis, same as the previous note; the story is more common in literary works. Mr Shen Congwen has this kind of description in his novel Xiao Xiao.
- 12.
For example, Article 516 of US Criminal Code in 1910 stipulates that adultery between a married female and an unmarried male constitutes an adultery crime for both the male and the female. Adultery between a married male and an unmarried female, the male commits the crime of adultery. For another example, French Criminal Code in 1810 stipulates that if a husband deliberately kills an adulterous male who conducts adultery with his wife at home, he should be excused from the crime of intentional killing.
Please note that there is another kind of “discrimination” with reasons in biology and economics, which is severe punishment against male third party. It is demonstrated in the stipulation that when an unmarried person and a married person have extramarital sexual behavior, the unmarried will be given criminal punishment if he is a male, but will not be punished legally if she is a female (and will be regarded as victim of seduction). The reason is that from the biological perspective, the male normally more active on the issue of sex, while the female is often more proactive (especially for young females); and from the perspective of economics of punishment, restraining the activeness of males can more effectively reduce this kind of extramarital sexual behavior.
- 13.
An important example is the argument about “adultery with an unmarried woman.” Please see Zhang Guohua , Rao Xinxian (as chief editor): Outline of Legal Thoughts in China, the second volume, Gansu People’s Press, 1987.
- 14.
This is not only about Chinese. I once asked a middle-aged American woman for her opinion on this matter. According to her, even in America, this kind of issue of fighting out of fury can be understood and forgiven by the society and the judge will let him go, as long as he does not go as much as M in this case.
- 15.
Another important collateral evidence is that the Marriage and Family Law (draft) under the consideration of modification has already aroused many objections in the intellectual circle in China or at least related to law only due to the consideration of having certain legal restriction against the issue of “a third party.”
- 16.
Such as Sect. 7.2 of Article 22 of Public Security Administration Regulations of the People’s Republic of China (1994) and Article 238 of Criminal Law of the People’s Republic of China.
- 17.
On this point, we can criticize that this woman “lack the consciousness of subject,” “lack independent personality.” This kind of criticism can hold water, but if we observe further, we will see that this has constituted a kind of moral restriction on the sexual behavior of the husband to a certain degree. In this sense, sex loyalty, whether as ideology, or as a social practice, is actually often infiltrated with the conscious and unconscious right operation of sexual loyalty toward his or her sex partner.
- 18.
In this sense, I don’t agree with the summary of this case by Yang Liu’s paper (same as previous note 4) and other researchers: adultery and racketeering. Considering the public pressure from the rural community, I believe that the fury of this husband is real. What he has done is not to blackmail (the amount of “compensation” he has finally got is lower than the amount he originally could get), but to humiliate W. Even if he cannot subject W to the sanction of statute, he must subject him to the sanction of customary law.
- 19.
Please see Posner, Sex and Reason, as previous note 10.
- 20.
I must point out that I use this example only to stress how powerful customs are and their influence toward case handling by justice, but not to justify this specific custom (though I personally approve it consciously and emotionally). I even oppose putting this custom into statute and I’m more willing to let this custom live among the people to play its role and change gradually. If these simplified anti-feudalists or radical feminists want to use those words as their attacking target, they must be careful enough not to hurt themselves!
- 21.
There are another two examples. At the beginning of the 1980s, I was an intern at a certain district court in Beijing. A male university graduate asked for a divorce because he had a new love, and the wife finally agreed with tears in her eyes. But her only formal request was that the court changed her into the plaintiff who wanted to sever the marital relationship. It looked like some black humor or the story of Wang Shuo’s novel (it is actually very unfair to Wang Shuo who wrote novels like Losing My Love Forever and Lady Flight Attendant). But once we deeply understand the rules implied and reasons behind the rules, we can no longer laugh about it. Please see note 27 for another example.
- 22.
In Western society, once the weather gets cold, there are homeless people violating the law in order to get into a place to keep out the cold. He knows the goodness in it. When I served in the army in those years, I even thought that “confinement” is fine because I was too tired and desperately wanted to rest. And I could never understand why “confinement” was considered a punishment at that time!
- 23.
Suli: “Legal Evasion and Legal Pluralism,” Chinese and Foreign Law Studies, Issue 6 of 1993.
- 24.
This point has become increasingly important. In many places, especially when villagers fight against all kinds of taxes in all kind of ways, they will always use the principle and the spirit of document or law from the central government which has been transmitted by TV and has greater legitimacy. This is actually the customary practice of urban people. The convenient information exchange in the modern society has greatly changed the knowledge sources and patterns of custom transition.
- 25.
Wang Liming believes that the right like “right of personality” is hard to grow from the “native resource” (Wang Liming: “System of China’s Civil Law Code,” Lecture on The Review of Legal Studies of the twentieth Century, December 27th, 1999). This is a conclusion hastily drawn without empirical research. Villager M might not use the vocabulary like right of personality, but when he claimed that he “couldn’t live in the village any more” and demanded compensation on “mental and reputational harm,” what he demanded was dignity of a person or man or husband. The fact that the villager M did not use the word does not mean that he does not have this kind of emotion or instinct. On the contrary, only when there is demand of this kind of emotion and instinct that an introduced legal category can be really rooted in the society.
- 26.
Suli: “Qiu Ju’s Puzzle and Grandpa Shangang’s Tragedy,” Rule of Law and Native Resource, China Politics and Law University Press, 1996. Feng Xiang: “Qiu Ju’s Puzzle and the Civilization of Vega,” Wooden-Leg Justice, Zhongshan University Press, 1999.
- 27.
About limited altruism, it was possibly the Confucius who had pointed it out earliest. It was the so-called view of “Love has its difference.” Later, Mencius fully expressed this point and emphasized extending affection. In the West, The Holy Bible stresses that you should first of all love your neighbors. Adam Smith and David Hume also demonstrated this point. Please see: Adam Smith: The Theory of Moral Sentiments, translated by Jiang Ziqiang and etc., the Commercial Press, 1997; David Hume: A Treatise of Human Nature, the second volume, translated by Guan Wenyun, proofread by zheng Zhixiang, the Commercial Press, 1980, vol. 3, Chaps. 2 and 3.
- 28.
Please refer to Chap. 5 of this book “Dispute Settlement and Governance of Rules”: the old-aged mother who was beaten by her son could not get protection from the police.
- 29.
This is not just my speculation. As a matter fact, about three years ago, the Jiajiang County Court in Sichuan Province accepted the administrative litigation of a fake product manufacturer against a person who cracked down on fake products. The case itself was no more morally sensitive than the case mentioned here, but it aroused cries of journalists in the CCTV’s Focus Interview: “Fake product manufacturer accuses person who cracks down on fake products instead.”
- 30.
Please see “Legal Pluralism and Legal Evasion” and “On Legal Evasion again,” both from Rule of Law and its Native Resource, China Politics and Law University Press, 1996; and “Custom of Modern Chinese Law—A Perspective on Statute,” Legal Review, Issue 2, 2001.
- 31.
For example, Article 1 of Swiss Civil Codes stipulates: In the absence of a provision, the court shall decide in accordance with customary law and, in the absence of customary law, in accordance with the rule that it would make as legislator. Article 2 of Japanese Law stipulates that customs that do not go against public order or good customs, and only limited to those recognized by laws and regulations or items without stipulation in certain laws and rules, have the equal effect with the law. Article 1 of Japanese Commercial Code stipulates that about commercial issues, in the absence of a provision, customary law shall be applied; in the absence of customary law, civil law shall be applied. In addition, when explaining contents of a contract or supplementing flaws of a contract, customs shall be applied first. In absence of applied customs, discretionary legal norms shall be applied (please note that this kind of sequence is a kind of custom itself, but it has certain kind of normative). Please see Shi Shangkuan: General Principles to Civil Law, self-published by author himself in 1980, p. 423, “The way to explain the declaration of intention should take the purpose that the parties concerned want to achieve as the first order, the custom as the second order and the random legal norms as the third order.” However, in the Anglo-American law system, at least in terms of criminal procedures, “Some informal, beyond law customs that restrict justice process are as important (as US Constitution and The Bill of Rights).” Please see Richard A. Posner, An Affair of State, as previous note 9, p. 59.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2016 Foreign Language Teaching and Research Publishing Co., Ltd and Springer Science+Business Media Singapore
About this chapter
Cite this chapter
Zhu, S. (2016). Between Statute and Custom. In: Sending Law to the Countryside. China Academic Library. Springer, Singapore. https://doi.org/10.1007/978-981-10-1142-9_7
Download citation
DOI: https://doi.org/10.1007/978-981-10-1142-9_7
Published:
Publisher Name: Springer, Singapore
Print ISBN: 978-981-10-1141-2
Online ISBN: 978-981-10-1142-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)