Louise Edwards – Journal of the Society for Asian Humanities (JOSAH)

Traditional Chinese family values were not so virtuous and Republican women were not so quiet—Reflections on Bernice Lee’s ‘Women and the Law in Republican China’ (1977).

Louise Edwards, UNSW, Sydney

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Bernice Lee’s article ‘Women and the Law in Republican China’ was originally published in JOSA 12 (1977). Download the original article here.

Bernice Lee’s 1977 article pioneered research in women’s legal history in China. It was among the very first to explore the dramatic shifts in the legal status of women contained in the Nationalist’s (GMD) 1931 Civil Codes that recognised women’s personhood and legal equality. Lee not only maps the differences between the old and new laws but also places them into a rich historical context revealing the deep cultural challenges the new Civil Codes presented. At the time of publication, the article broke new ground because it was commonly assumed that there was nothing worth researching in legal history about women. Apart from the low status that accrued to any scholarly research on women prevailing at that time, there were two other conventions that stymied growth in the field. First, researchers sometimes assumed that the CCP, not the GMD, granted women equality in 1949. And second, for those who did recognise the advances of the GMD’s civil code, that these laws remained paper decorations to an incompetent, corrupt state. Lee’s meticulous research revealed the weaknesses in both these assumptions and as a consequence the article remains a classic reference in the field.

Her detailed discussion of the key legal texts and their related secondary literature revealed not only the emergence of ‘legal equality’ in the 1930s but simultaneously the extensive nature of the discrimination women faced under the Qing codes. In contrasting China’s ‘old and new’ legal codes, Lee shows the many inglorious aspects of the now much-vaunted ‘traditional Chinese family values’. The practice of ‘hiring out’ (prostituting) wives and daughters was sufficiently frequent that there were imperial-era laws prohibiting or limiting the practice. But, reaffirming the status of wives as property, Ming and Qing codes only prohibited men and mothers-in-law from pawning or hiring out wives to other men if they were not poor. For the poor, no such legal constraints against prostituting a wife or daughter-in-law applied. Girls who were traded for cash between families as child brides also had some protection in the imperial laws—it was illegal to beat them to death. Against this backdrop, the achievements of the 1931 Civil Codes in championing the principle of equality of all human beings becomes evident. The GMD codes outlawed the pawning, renting, buying, and selling of people altogether. In the first thirty years after the establishment of the People’s Republic of China, evidence of women’s status as chattels in the Qing, served as proof of the evils of ‘feudal values’ and the virtue of the socialist state. One wonders how, or if, current advocates of ‘traditional Chinese family values’ reconcile their nostalgia of such ‘traditional values’ in the creation of the harmonious society.

How has the field of women’s legal history built on Dr Lee’s foundational research?

First, we know that women did in fact use their new legal rights in courts of law. Work by Lisa Tran and Margaret Kuo draws on archival records of the police and courts and provide lively and sometimes distressing evidence of fiery divorce cases, concubinage, adultery, bigamy and domestic violence.[1] These sources were inaccessible in the 1970s. Lee tentatively concluded in 1977 that the new laws were not entirely moribund, even while she noted their limited reach and had, in the middle of the article, equivocated about their actual impact on the daily lives of women. The evidence available in 1977 about the extent of the legal activity undertaken by women, or the change in social practices these laws produced was extremely limited. Lee’s tentative conclusion is a mark of responsible scholarship. As the field of Republican era legal history has expanded, archives have opened, and new sources have come available, Lee’s suspicion has been confirmed.

Second, we now know far more about the activism of women in the first half of the twentieth century for women’s rights. One of Lee’s key arguments is that women were the beneficiaries of a change in law that was originally prompted by China’s leaders’ desire to abolish the extraterritorial rights of imperialist powers. This perspective accords with a long-held view that Chinese women did not seek their own liberation, but rather were granted it by enlightened men. And, in this case, Lee posits that women were almost inadvertent beneficiaries of a process in which 95 per cent of contemporaneous western laws were being adopted by China, and these just happened to include sex equality. On this view, women in China almost accidentally secured legal equality in the GMD Civil Code. We know now that China’s feminists were extremely exercised about legal reform, active in seeking their rights as ‘#people too’ and argued frequently in protests, associations, magazines, and newspapers to that end.[2] The educated women of China wanted equal status with their brothers and husbands in all matters of family law including inheritance and divorce rights and protection as independent persons. The extensive sources now readily available, such as women’s journals, daily newspapers as well as parliamentary documents and legal records show that China’s feminists had laid the groundwork in advance of the drafting of the Civil Code. In so doing, they ensured the drafters did not blithely eliminate the sex equality provisions. The inclusion of French-trained lawyer, Zheng Yuxiu (Soumay Tcheng), an outspoken feminist, in the drafting committee, was a significant indication that the GMD was taking women’s views into account.

Finally, Lee’s article contributed to elevating scholarly work on women’s history—before ‘gender’ had emerged as a common analytical tool—and provided a launchpad for what is now a dynamic field of many scholars, such as Tran and Kuo, working on gender and the law in Chinese history.

[1] Concubines in Court: Marriage and Monogamy in Twentieth-Century China. (Lanham: Rowman & Littlefield, 2015); ‘Adultery, Bigamy, and Conjugal Fidelity: The ABC’s of Monogamy in Republican China’, Twentieth-Century China 36.2 (May 2011): 99-118; ‘Sex and Equality in Republican China: The Debate Over the Adultery Law’, Modern China 35.2 (2009): 191-223.

Margaret Kuo, Intolerable Cruelty: Marriage, Law and Society in Early Twentieth Century China (Lanham: Rowman & Littlefield, 2012); ‘Spousal Abuse: Divorce Litigation and the Emergence of Rights Consciousness in Republican China’, Modern China 38.5 (2012): 523-58; ‘The Legislative Process in Republican China: The 1930 Nationalist Family Law and the Controversy over Surnames for Married Women’, Twentieth-Century China 36.1 (2011): 44-66.

[2] For example, Louise Edwards, Women’s Suffrage in China (Stanford: Stanford University Press, 2008); Zhang Yun, Engendering the Women Question: Men Women and Writing in China’s Early Periodical Press (Leiden: EJ Brill, 2020).

About Bernice Lee

Bernice Lee (née Silk) first became interested in Chinese language and literature while teaching English to Chinese Primary school children in Hong Kong in 1960-62. Learning Cantonese became one of her spare time activities.

After returning to Sydney, she enrolled in a BA at Sydney University and her Hong Kong experience motivated her to study Chinese. In 1969 she graduated with First Class Honours in Chinese and a major in History.

Between 1970 and 1975 she undertook graduate research and completed her PhD thesis, titled “The change in the legal status of Chinese women in civil matters from Traditional Law to the Republican Civil Code” under the supervision of Professor A.R. Davis, Head of the Department of Oriental Studies at Sydney University, and with the assistance of Dr Agnes Syrokomla-Stefanowska. As part of her graduate studies she conducted research in Taiwan during 1972-73 where she received invaluable advice and guidance from two Chinese legal scholars, Professor Tai Yen-hui, Vice President of the Judicial Yuan and Professor of Law at National Taiwan University, and Dr Lee Tzu-wen.

From 1976-79 she was a tutor in Asian History in the Department of History at Sydney University. During that time, she wrote numerous articles on topics such as Chinese women and the law, the tong yangxi (where a young girl is brought into the family to be a future daughter-in-law for the family’s son), infanticide, footbinding, concubinage and revolutionary Chinese women.

In 1980 she joined the Commonwealth Public Service in Canberra where she worked in various roles until her retirement in 2002. Two of her positions related directly to China; China analyst at the Office of National Assessments 1981-86 and a posting to Beijing in 1990-93. She was also posted to Hanoi in 1997-2000.

From 2005-2008 she returned to Hanoi to teach at RMIT International University.

Retirement has given her the opportunity to renew her interest in China through reading widely and giving a series of talks to the University of the Third Age – U3A in Sydney and Canberra on Chinese literature, history and culture.

Creating space for feminist subjectivity and feminist history in China Studies—reflections on T. Kobayashi’s ‘Chang Chu-chün for Women’s Rights’ (1976)

Louise Edwards, UNSW, Sydney

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T. Kobayashi’s article ‘Chang Chu-chün for Women’s Rights’ was originally published in JOSA 11 (1976). Download the original article here.

When JOSA published Kobayashi’s article in 1976, universities considered feminism to be a radical fringe movement. At Sydney University in 1973, two graduate students, Liz Jacka and Jean Curthoys, proposed a new course on feminist philosophy only to have it rejected by the Professorial Board.[1] The issue generated such heat that an extended strike of staff and students ensued on the need for democratizing the university.[2] In 1974 at the Australian National University students occupied the Chancellery for 24 hours demanding women’s studies courses. The success of the course the protests secured led to the ANU hiring Susan Magarey to design the first Women’s Studies major in any Australian university in 1978.[3]

So, at the time of Kobayashi’s research Women’s Studies had marginal institutional traction, feminists were derided as either deviant, bra-burning man-haters or mad. Perceived as a direct threat to the established structures of academia, families, and workplaces, they faced derision and abuse. Publishing on women’s history or feminist history was a risky career move in the 1970s and for much of the 1980s and academics undertaking this research often first felt the need to ‘prove themselves’ in more conventional fields before moving to research ‘women’.

In this climate, one wonders why a male academic would take up the challenge of writing about a leading female advocate of women’s rights in Chinese history. How would the topic be handled? Kobayashi’s opening paragraph provides an inkling: ‘Since I am not a devoted feminist, I should like to deal with the subject mainly in the light of modern Chinese history.’ The awkward ‘I am not a feminist so…’ caveat could have led along the path of belittling the feminist frame, but rather it marked Kobayashi’s willingness to take unconventional women seriously as figures worthy of scholarly investigation and to take feminism seriously as a movement deserving historiographical treatment. In his article Kobayashi builds a biographical portrait of Zhang Zhujun (Chang Chu-chün) 张竹君 (1876-1964), narrating her early life experience, engagement with Christianity, medical training, activism in the 1911 revolution, welfare service provision and publishing—and explores how each connected to the larger project of promoting women’s standing in society.

Kobayashi’s awkward, but explicit mention of feminism in the opening is an indicator of what is to follow. Although distancing himself from feminists throughout the article, he builds the space for a feminist subjectivity in Chinese history (for Zhang Zhujun specifically but for her contemporaries as well). And he also frames an academic arena in which Chinese feminist history can be marked out. Kobayashi’s tentative tone belies its role in building a historical Chinese feminist voice and a scholarly field for Chinese feminist history. In his biographical study Kobayashi tests Zhang’s activities against an idea of ‘real feminism’ while never explicitly discussing what this ‘feminism’ might be. This exploratory process presents the potential feminist terrain across which JOSA’s readers are invited to survey. Initially, Kobayashi examines what this ‘real feminism’ is not. For example, he describes Hu Shi and Li Ruchen as ‘not really the forerunners of the modern feminist movement’ (p. 62), and the equality of the Taiping Kingdom as ‘hardly be[ing] included in the modern women’s rights movement” (p. 63). Kang Youwei’s anti-footbinding campaign similarly ‘strictly speaking, in itself, it was not a feminist movement to assert women’s rights’ (p. 63).

Kobayashi’s desire to establish the boundaries about what is in and what is out of ‘real feminism’ takes as given that there is a feminist movement (somewhere out there) that can be tracked and that warrants our attention. While hardly revolutionary today, in 1976, this was a significant step to building the robust field of women’s history in China Studies we currently enjoy. Why? because the very existence of a distinct Chinese feminist movement was largely denied or disregarded in the historiography of China. By framing the research problem through the question of ‘Who is a feminist and who is not?’ he asserts the existence of the Chinese feminist as historical actor, even if he declares himself not to be a feminist.

Next, Kobayashi builds the subjectivity of the modern feminist as a critical judge of the historical past. In writing of Liang Qichao’s advocacy of women’s education for the purposes of raising better sons, Kobayashi says this ‘must enrage modern feminists’ (p. 65). While collapsing a diversity of possible feminist positions into one, Kobayashi is nonetheless also establishing the ‘modern feminist’ as an actor, both political and scholarly, in the appraisal of historical events. The field that is worthy of research also has its guardians.

As the paper continues, the feminist movement and its female actors become more clearly defined for JOSA’s readers at a historical moment when they too were ‘feeling their way’ through a major social and political shift. Kobayashi establishes what will become in many later histories of the Chinese women’s movement, the image of an ‘acceptable’ Chinese feminist—the woman who was really a nationalist and a patriot. The logic runs that while feminists existed in China, they were the good type. ‘Unlike the feminist movement in other countries’ that rebelled against men, Chinese feminists wanted to meet the needs of the nation and were ‘not hostile at all towards enlightened men’ (p. 77). In establishing China’s first feminists as the ‘good sort’ that recognised the bigger picture of nation-building, Kobayashi reflects orthodox narratives of women’s history emerging from the PRC and ROC. But he also creates simultaneously the possibility of the other type of historical feminist actor—the hostile one. Chinese women’s feminism is situated in relation to a global movement in which exists a putative pure or true feminism. China’s feminism might be the ‘good’ type but it is not the ‘real thing’. This conception of a uniquely Chinese feminism still circulates today in myriad guises and usually serves to contain and moderate contemporary feminist activism by appealing to ‘Chinese feminine values’ that are more refined than the supposedly more confrontational feminists of the west.

Kobayashi’s article is one of the first to bring Zhang Zhujun to western readers’ attention and was completed before the vast range of materials on women’s history became available from the late 1980s. As a result, while this article is no longer the ‘go to’ piece on Zhang that it was in the 1976, Kobayashi’s willingness to write on her life as a ‘Chinese feminist’ and within the frame of ‘a history of Chinese feminism’ forms an important part of the building of credibility for feminist academic history as a field and the value of researching feminist historical actors.

[1] For Curthoy’s piercing critique of the state of academic feminism see Jean Curthoys, Feminist Amnesia: The Wake of Women’s Liberation (London: Routledge, 1997).

[2] Lewis d’Avigdor, ‘Let the Lunatics Run their Own Asylum: Participatory Democracy at the University of Sydney, 1960-1979’, Bachelor of Arts (honours) thesis, June 2011. Available at: https://ses.library.usyd.edu.au/bitstream/handle/2123/7759/d’Avigdor,%20Lewis_2011.pdf;jsessionid=7F8CD98A654E8AAF2F40E202F6B9B994?sequence=1 (accessed 29 September 2021).

[3] Lyndall Ryan, ‘Women’s Studies in Australian Higher Education: Introduction and Brief History’, The Australian Universities Review 34.2 (1991): 2-7.

About T. Kobayashi

Toshihiko Kobayashi, a graduate of the University of Tokyo, taught at the Departments of Oriental Studies and of Asian Studies at the University of Sydney for over 40 years. He died in 2017 at the age of 93.