Get 20M+ Full-Text Papers For Less Than $1.50/day. Start a 14-Day Trial for You or Your Team.

Learn More →

East, East, and West: Comparative Law and the Historical Processes of Legal Interaction in China and Japan

East, East, and West: Comparative Law and the Historical Processes of Legal Interaction in China... Abstract As Western notions of law formed the basis of a globally shared common legal language, the language of comparative law has become inevitably Western. In studying historical societies that did not share this language, analyses using this language will always risk anachronisms due to the inherent assumptions, be they the meanings given to particular terms, or the manner in which different areas of law are categorized and distinguished from each other. One way to avoid such anachronisms would be to attempt the formulation of a different concept of law that is neutral to Western and non-Western legal traditions. This, however, would move the analysis away from discussions in other areas of legal studies conducted in the aforementioned common legal language, which in turn would limit the significance comparative law might have for these discussions. In looking at the historical processes of legal modernization in China and Japan, this Article discusses how one might manage the risk of anachronism in writing a legal history of non-Western societies, while also retaining a link with a wider range of legal studies. After Part I considers some of the theoretical problems of studying Chinese and Japanese society as a project in comparative law, Part II will look at the debates on legal reform in China and Japan in the late nineteenth and early twentieth centuries. While these debates included serious discussions on incorporating traditional aspects of Chinese or Japanese society in the newly formed Western-style legal system, the discussions themselves were conducted in an essentially Westernized language, which identified the traditions of Japanese and Chinese as “customs,” a legal notion newly introduced in the course of modernization. While looking at certain traditional practices and institutions as “custom” might have been an anachronism, the extent and significance of this anachronism can be assessed through a study of the process of interaction whereby this viewpoint came to be adopted. Part III of this Article suggests an approach to studying the traditional Chinese property regime, also starting from a study of the historical process of interaction between Western colonial law and local society in China. Using an analysis of this interaction as a starting point, it discusses how relevant aspects of Chinese society and their interconnections might be identified, opening up possibilities for comparisons not limited to East–West comparisons, and it also contributes to a more general legal discussion on family, property, and state formation. Introduction In a world where it has become a commonplace to question the disciplinary boundaries between history, anthropology, and sociology, and where serious doubts have been expressed as to whether these could remain different disciplines,1 one has the impression that it might be more difficult to envisage comparative law without any form of historical perspective, or legal history without any comparative element.2 Legal systems and legal cultures develop over time, and today very few, if any, legal systems have not incorporated varied elements with their origins in a number of different legal traditions, be they Roman, Ecclesiastic, Germanic, Islamic, or Chinese. When such incorporation took place in the formation of these legal systems, there would often be some conflict between what were deemed “universal” norms, on the one hand, and elements that were seen as more “particular” to certain cultures, on the other.3 The historical process of the formation of a legal system is unique, with individual personalities, political circumstances, and historical accident all playing a part. There is, however a certain universality to the manner in which the language of the universal versus the particular is employed, and the different traditions are reinterpreted and reformulated in this context so as to fit into the new legal system. In the formation of modern legal systems in East Asia, the above process took place with the “universal” mostly taking the form of “Western” law, either specific examples of it or under such overarching notions as “Western principles.” In this short Article, I will trace the relatively complex historical process of the interaction between Japanese, Chinese, and Western legal traditions in the formation of modern, Westernized legal systems in China and Japan. I will then try to exemplify how writing such a history of interaction might contribute to some of the projects of legal history and comparative law. I. China, Japan, and Comparative Law Both China and Japan have been objects of interest in the discussions on comparative law for generations. Thinkers such as Montesquieu and Max Weber have incorporated analyses—however limited—of these societies in their treatises regarding (among other topics) the dangers of despotism in France, or the particularity of the European tradition in creating formal, rational law.4 In the processes of late-nineteenth- to early-twentieth-century legal modernization in these countries, John Henry Wigmore and Jean Escarra, each in his capacity as an advisor of one form or another, offered serious considerations of how traditional Japanese and Chinese societies and their customs worked, and how a Western-style legal system could operate in such an environment.5 More recently, the economic ascent of Japan in the 1980s and China in the 2000s have triggered arguments about how such processes, involving economic success and political organization, might be connected to the content and the workings of Japanese or Chinese law. Such attempts might discuss the merits of Chinese or Japanese forms of corporate governance in questioning the efficacy of Western practices or ask probing questions concerning the legitimacy of certain (traditionally non-Western) practices in the arena of global capitalism.6 While the motives informing the comparison have been diverse, one aspect common to these comparisons, needless to say, is that the comparison itself is Western: first, in the sense that one is constantly comparing Japan or China with the West, and second, in that the interests and the methods of comparison are those formed in a primarily Western context. It is this second sense in which the comparison itself is “Western,” which poses a problem in comparative law. The particular features of a society that one chooses to focus on as part of an exercise in comparative law (what one defines as law in the first place) are already informed by a Western notion of law. At worst, this allows the comparison to become a simple story of absence, noting how aspects such as “the rule of law” or “strong property rights” did not exist in traditional China or Japan. At best, the comparison can take account of the Japanese/Chinese social context with empirical depth, describing their institutions in their own terms. However, even in this latter case, the description has to be made in some form of common legal language, and through the course of history this legal language has become one based on Western notions of law.7 Thus, the study of the legal history of societies such as traditional China or Japan would be inherently comparative. Describing these societies using the type of common legal language mentioned above necessarily involves an implied comparison. Such an exercise would strive to be an accurate account of the society it portrays and to make a meaningful contribution to legal studies. This will constantly involve the ubiquitous tension between, on the one hand, the authentic reconstruction of practices and institutions, based on an understanding of the categories as they were used at a certain point in time by the Japanese or Chinese themselves and, on the other hand, the necessary anachronism of looking at these institutions in such a way that might be relevant to the (perhaps unfortunately Eurocentric) legal discourse of the scholar’s own time and place. Moreover, if one attempts a comparison between China and Japan, as I will below, the exercise becomes a three-way comparison, as it necessarily involves phenomena in the two societies being interpreted through the West-informed language of law. Acknowledging that Japanese or Chinese legal discourse today is conducted in this West-informed language of law, a practice that is clearly Eurocentric in its origin, is not to be defeatist. The Americans, the British, and the Germans all chose, at different points in their history, to recognize a totally foreign ancient Greek culture—whose language they originally could not read and which had never taken root in their own lands—and accept it as their own “classical antiquity,” modeling their social institutions on Greek democracy, a term they never translated from the original Greek (dēmokratía). Their democracies were formulated differently from those of Greek city-states, and the Greeks today claim no superiority in political theorization or institutional design over these societies. Similarly, the Japanese and the Chinese chose, in the late nineteenth and early twentieth centuries, to base their legal institutions on foreign models, either accepting them as universal, or reluctantly seeing the acceptance as a political necessity. Either way, once China and Japan become fully integrated as users of this common legal language and develop their own legal practices and theories, they will also become part of a dialogue that might innovate, change, or transform how law is understood more generally. This Article will first trace the initial interaction process between Japan, China, and the West in the building of modern Chinese and Japanese legal systems. It will then focus on one aspect of how the process of interaction changed the thinking of Japanese and Chinese jurists, namely, the moment when they began to assess certain aspects of their traditions as “customs.” The Article will then try to exemplify how, through studying this interaction, we might come to a better understanding not only of traditional Chinese and Japanese institutions, but also of certain aspects of Western law itself. II. Japanese/Chinese Legal Modernization and Reformulation of Practices as “Custom” In this Part, I will look at the processes of legal modernization in Japan and China, paying particular attention to how the two processes were intertwined, and how traditional practices were reformulated in accordance with the received Western notion of “custom.” This took place amid China–Japan interactions involving Japanese imperial expansion on the one hand, and Chinese pragmatism in using the Japanese model for their own legal modernization on the other. A. Japan One particular text is widely credited for introducing Western legal concepts to China and Japan. This text, titled Wanguo gongfa, which translates to “Public Law of All Nations,” was a translation of Henry Wheaton’s Elements of International Law (1836), and was translated into Chinese by the American missionary William Martin and published in China in 1864. Although the publication was under the auspices of a department of the Qing government, the political climate was such that it could have only a limited impact in China at the time of publication. It was in Japan, however, where it was published the following year, with added punctuation (to make it readable in Japanese), that the text had a stronger, more immediate impact.8 Following the Perry expeditions and treaties of the 1850s, Japanese policymakers and intellectuals widely discussed the need to become versed in international law and construct a Westernized legal system. Future legislators had already been sent to Europe to study international law, and interest in the Wanguo gongfa was high. Following the punctuated version of 1865, partial translations into Japanese were published in 1868 and 1870.9 Moreover, in advance of these translations, Japanese thinkers had developed a certain discourse regarding the universal value of Western institutions. This was done through equating aspects of Western society with Confucian ideals, and arguing that some of these ideals had been better realized in the West. Institutions such as hospitals and orphanages were represented as realizations of the Confucian notion of benevolence (ren), parliamentary debate was associated with the ideal of public spirit (gong) required of emperors, and the election and non-hereditary nature of the American presidency was equated with the practice of the legendary rulers of ancient China idealized in the Confucian classics.10 The notion that Confucian ideals were better realized outside of China brought a radical change in the assessment of both the past and comparative merits of different societies. It has been argued that through discussions of the Wanguo gongfa (or Bankoku Kôhô in Japanese), with the background of such discourse as above, the notion of the universality of Western legal concepts became widely accepted. An article in the Meiji Emperor’s Charter Oath (promulgated at his ascent to the throne in 1868), which provided for the abolition of malign customs, and the fact that the imperial rule was based on “The Public Way of Heaven and Earth,” even while using Confucian terms, were largely, if not exclusively, based on the notion of a universal international law, inspired by the translation of the Elements.11 However, the acceptance of Western legal concepts, introduced in the translation of the Elements, did not happen without resistance. On the one hand, policymakers were constrained by the conditions of the “unequal treaties” that necessitated the enactment of certain legal codes in accordance with “Western principles,”12 and versions of legal codes based on what Chinese and Japanese policymakers perceived to be “Western” principles were drafted from the earliest days of the Meiji. On the other hand, not only were there critics of the process, who called for the preservation of what, in their opinion, were Japanese values, but those involved in the drafting of codes themselves were far from simply advocates of “Western principles.” They were well aware of the tensions within European society involving the different legal traditions, notions of the universal versus the particular, and contemporary developments in the social sciences regarding social evolution, customs, and law.13 While it is not an objective of this Article to assess the different factors at play in the complex controversy that ensued in the codification process,14 two aspects are worth pointing out. First, throughout the discussions, extensive comparisons were made by the participants, both among Western legal systems and between the Japanese debates regarding codification and polemics elsewhere in the world. Second, the process involved a consideration of what aspects indigenous to (traditional) Japanese society should be included in the civil code. This consideration would have a long-term effect not limited to Japanese law. The various comparisons were a natural consequence of the circumstances under which the Japanese tried to draw examples from different legal systems. Systematic teaching of English, French, and German law was carried out both at the Imperial University and in private law schools, and the students of these systems were keenly aware of the latest legal developments in the respective countries. Members of the Investigation Committee of Codes later wrote how it was suggested that the new civil code take the form of the Saxonian Civil Code of 1863–1865, and how the German model was thought to be more “modern” than the (Napoleonic) French Civil Code. Moreover, an explicit parallel was drawn between the controversy regarding the civil code in Japan and the codification debate between Friedrich Carl von Savigny and Anton Thibaut in early-nineteenth-century Germany.15 Rather than seeing the controversy as a clash between Western law claiming universality and Japanese traditions, the understanding was that the controversy itself replicated an earlier Western debate between natural law theorists and historical jurisprudence.16 The reassessment of the Japanese past had been reformulated as a series of discussions surrounding Japanese “customs.” Japanese jurists had developed the notion of kanshû (which represented their understanding of the Western concept of custom) by the time of the controversy. It is difficult to pinpoint the original usage of the term kanshû, but it is worth noting that when the term occurs in the context of debates regarding legal modernization, it is used effectively as a translation of Western terms such as custom or coutume, and not as a term having layers of meaning that originate in the Japanese language before its contact with Western concepts.17 While the vocal opponents of enforcement would talk of the “beautiful ways” of the Japanese that were being threatened, the actual legal discussions would focus on the notion of custom.18 In the West, the focus on custom took place gradually. It was a late development in the history of Roman law, when classical jurists placed importance on professional opinion rather than custom; and while Justinian recognized custom as unwritten law, it is doubtful it played any part in the practice of his time.19 It was in medieval Europe that custom was looked upon as authoritative,20 and became a source of law as “general custom of the realm” in England, or as the coutumes of the various provinces in France.21 Moreover, as the Romanists and Germanists in Germany would debate the relative merits of adopting Germanic customs or Roman law, the Romanists saw the reception and practice of the latter in the Holy Roman Empire as an achievement of customary law.22 Legal modernization in Japan—and later in China—involved the reception of this dichotomy that had developed in Europe between the “universal” and “custom.” Not having a traditional legal system that integrated custom as a source of law, these societies began to identify elements of their past as custom and focusing on them in their legal argumentation through this process of modernization. However, it was not an easy task to decide which customs and traditions to incorporate, and how they could fit into a largely Western legal system. In fact, in the process leading up to the drafting of the civil code, whose enforcement was eventually postponed, a survey of Japanese customs had been commissioned, and the results published in 1877 and 1880.23 These results, however, appear to have had little impact on successive versions of the code, and the customs related by local elders being largely seen either as unusable in the context of a civil law, or too numerous and diverse to be incorporated in the time that was given.24 In the area of family law, the nationalist critics’ rhetoric of a sacred and inviolable right of the family patriarch certainly had an impact, and aided in postponing the enforcement of the code, but there was a stronger notion that the traditional family system was untenable in the changing society of Japan, which finally led to adoption of the Meiji Civil Code, retaining many of the institutions criticized by the conservatives as unacceptable.25 Another set of issues involved certain property rights, such as usufruit, droit d’usage, or lessee’s rights, that were included in the original civil code. These were criticized as threatening to the customary rights of landowners and as undermining the Meiji Code, and a system based on a strong ownership right was created in response to these criticisms. Moreover, the customary practice of iriai (“rights of common”) was incorporated into the Meiji Code; however, rather than making use of the knowledge of the practice accumulated in the surveys, the Code simply provided that these rights would be governed by local custom or by provisions in the relevant sections of co-ownership or servitude, thus missing the opportunity to consolidate this custom and turn it into positive law.26 While there is thus little evidence that the Meiji Civil Code took account of the early custom surveys, there was another significance to these surveys that was not limited to Japan, and this was its role as a model for later surveys carried out in various parts of East Asia.27 B. China The period during which the Japanese civil code was being drafted was also the time of the Sino-Japanese War. In terms of the survey of customs, this led to the establishment of the Rinji Taiwan Kyukan Chosakai (“Temporary Committee for the Investigation of Old Customs in Taiwan”) in 1901. The process whereby legal modernization was initiated in China at the beginning of the twentieth century has been thoroughly examined in the scholarship.28 The memorial that set out this policy, while suggesting the establishment of a Westernized legal system, proposed that this system should be modeled directly on Japan, and that Western laws (and legal terms) be translated not directly from the original languages, but from the Japanese.29 There was a rationale for this decision, since most, if not all, Japanese translations of Western legal terms used Chinese ideograms, and were readily understandable. Moreover, some of the key terms had been adopted by the Japanese from the Wanguo gongfa, and so were originally translations directly into Chinese in the first place.30 A long-term effect of this policy is that, to this day, there is a large overlap between Japanese and Chinese legal vocabulary. This makes it a much easier process for legal students of the two countries to understand each other’s laws, which is remarkable, considering how the two languages are completely different in terms of grammar and basic words, despite the common use of Chinese ideograms. One initiative in this process of legal modernization was the survey of customs. The Chinese term denoting “custom” in this context was xiguan, a term that does not appear in the traditional legal discourse.31 Shiga Shuzo suggested that the term had to be created in the course of the reception of modern legal studies, as an equivalent of the Japanese term kanshû.32 Late Qing custom surveys were conducted separately by two different branches of the government,33 and there is some controversy regarding the extent to which Japanese opinions and practices had a direct influence.34 Either way, interaction regarding the surveys is well documented. Japanese advisors invited by the Qing government strongly recommended surveying customs, and Chinese practitioners refer to Japanese arguments and examples.35 The late Qing efforts of custom surveys and codification ended prematurely with the Republican Revolution of 1911. In 1913, the Dali Yuan, the Supreme Court of the Republic of China, issued two landmark judgments regarding the application of customary law, stipulating the conditions under which customary law can be said to exist, and stating that where there was no clear provision in the written law, customary law would be applied.36 There are a number of Japanese texts, which may have been at the origin of these judgments,37 but regardless of any direct Japanese influence, these judgments necessitated some knowledge of civil and commercial customs by the courts. Moreover, as codification was yet to take place in the newly formed Republic, there was a wide scope for the application of customary law, and numerous recommendations for a thorough survey of customs were made to the government. Following such recommendations, extensive surveys of civil and commercial customs were made between 1918 and 1921, and would produce the Minshangshi xiguan diaocha baogaolü (1930), to this day one of the basic materials for studying legal customs in traditional China. Concurrently with these late Qing and Republican surveys, there were various surveys of customs being carried out by Japanese jurists throughout East Asia. The Taiwanese surveys culminated in the compilation of the Taiwan Shihô (1901–1911), perhaps the most systematic and comprehensive survey of Chinese legal customs to date. A report on Korean legal customs was published in 1913, shortly after the annexation of the peninsula, although the Japanese intervention in codification and custom surveys began in 1906.38 The year 1906 was also the year of the establishment of the South Manchurian Railway Company, and a number of the personnel involved in the Taiwanese surveys, including its leader Okamatsu, would continue the survey of customs in the Northeast.39 Surveys in the Northeast would continue into the 1930s and 1940s producing numerous reports, and after the establishment of Manchukuo in 1931, would form part of the effort for codification.40 Moreover, these surveys would produce the Chûgoku Nôson Kankô Chôsa, reproducing highly detailed interviews regarding the practices in such areas as family, property, commerce, and dispute resolution.41 As we learn more of the processes whereby the surveys were made, it becomes both possible and necessary to critically assess how and why particular practices are described in particular ways. For example, shifting interests within Japanese jurisprudence appears to have informed the difference in style between the Taiwan Shihô and the Chûgoku Nôson Kankô Chôsa.42 Moreover, as the attempt to understand Chinese society on its own terms progresses, it becomes (again) both possible and necessary to place the statements on custom in the wider social contexts in which these statements were made.43 II. Interactions and a Comparative Study of the Qing Property Regime A. Chinese Ancestral Property and Colonial Law One prominent example of identifying certain aspects of traditional society as “custom,” and treating them as such in a modernized legal system, emerged in the courts of Hong Kong. This was the institution known to the scholarship as zuchan, or ancestral property.44 The nominal owner of such property would be a common ancestor of a group of people, and the holding entity would be referred to in the ancestor’s personal name followed by the suffix zu denoting “ancestor,” or in the name of an ancestral hall tang or ci. In some cases, all the land in a village would be held in this form, and all living inhabitants would technically be tenants of the ancestor, tilling the ancestor’s land and paying him rent. In others, a piece of property might be owned in an urban area, and the income from that property would be remitted to a village where the descendants of the owning ancestor resided, providing them with a livelihood. Either way, a manager (or a number of managers) of the holding entity would be appointed from among the lineage members, and this manager would report to the rest of the lineage group.45 On the one hand, this form of holding was especially prevalent in southern China in late Imperial and Republican times, and it is unclear whether the Chinese themselves thought of it as a matter of law. The distribution of the proceeds was made in accordance with customary rules not found in Qing law. This was true of what Western legal systems would treat as family law in general, necessitating scholars to note that in order to reconstruct a “family law” for traditional China, the definition of law could not be a positivistic one, and such “law” had to be found in the “legal consciousness” of the people.46 On the other hand, the colonial legal system of Hong Kong had to formulate a legal interpretation of the practice of ancestral property. The basic paradigm used for this interpretation was that of the trust.47 This analogy certainly captured the aspect of there being no outright owner, but a trustee, or the manager of the property, and a group of beneficiaries who had little control over the management of the assets. In terms of comparative law, this was a typically common law (as opposed to civil law) interpretation of the Chinese practice. The Japanese colonists in Taiwan, coming from a civil law background, would use a different legal analogy for a similar institution.48 Both the British and the Japanese recognized these practices as “custom,” forming part of either “Chinese law and custom” in Hong Kong or Taiwan kyûkan (“old custom of Taiwan”). Extensive surveys of these customs were commissioned in both cases, resulting in detailed reports.49 As we have seen, for the Japanese and the Chinese, employing this notion of custom as a legally meaningful category was a phenomenon new to the period of legal modernization and Westernization in the late nineteenth and early twentieth centuries. This may well be seen as an integral part of how “one particular idea of law has become a global standard.”50 Here, the acceptance of the Western notion of law has affected, if not determined, how the Japanese and the Chinese assessed and formulated a dimension of their own past. One avenue of inquiry is opened up by such interaction between the traditionally Chinese practice of ancestral property, on the one hand, and Western (or Westernized) colonial legal systems, on the other. The lines between family rituals, property holding practices, and state enforcement appear to be drawn differently in traditional Chinese society compared to what is envisaged in the Western legal system. This highlights the necessity (if one were to truly understand the nature of this interaction) of investigating the interrelations between these factors within traditional society, without direct reference to Western legal principles. This leads to questions regarding what might be called the property regime of traditional Chinese society. To the extent that we would initially intend to understand the interrelations—as the Chinese themselves understood them—between factors that might be categorized under such rubrics as family, property, and state enforcement, the term “property regime” might itself be an anachronism. However, by retaining the notion of property in our analysis, the comparative study may aid in the understanding of property in general, i.e., in the common legal language of our time. B. The Property Regime of Qing China and the Intersection of Family, Property, and the State A full-scale inquiry into the property regime of Qing China or a comprehensive survey of the scholarship are beyond the scope of this Article. Various attempts have been made to reconstruct a “property law” for the Qing or to explain institutions such as conditional sale, the practice of supplementary payments after a sale (dubbed zhaojia), or the “one-field, two-owners” system.51 Here, drawing on some of the developments in this and related areas, as well as incorporating analyses of village-level material and drawing on some comparisons with Japan, I will try to indicate one possible direction of inquiry and consider its implications for comparative legal studies. One important point about the Qing “property regime” was that the Qing government was incapable of directly guaranteeing claims to property. First, the land register for taxation was defunct, leaving the government with no information regarding who held which plot of land.52 Second, judgments in land cases were basically unenforceable, partly due to the relative size of the bureaucracy, and the nature of a magistrate’s ruling needing to be accepted by the parties.53 Under these circumstances, a question to be raised is—How could land rights be guaranteed when the Qing state had neither the information nor the capacity that were necessary for doing so? An obvious place to look might be the local communities and their leadership. Indeed, it was through such leadership that land taxation could work despite the government’s lack of information regarding who held what land.54 The last decades have seen much advancement in our knowledge concerning the dynamics of how local communities were formed through the complementary principles of lineage and territory.55 This was partially aided by the growing availability of village-level documentation, including not just land deeds and account books, but also genealogies, notes on grave location, almanacs for daily use, and geomancy documents, all pertaining to the social organization of the same village.56 Through a reconstruction of consecutive land transactions as part of the social process of lineage building and checking the land deeds against the account books, it was revealed how each land transaction was performed as part of a financial relationship over extended periods of time, even though a simple reading of the land deed itself would suggest a single transaction on the day of the deed. Moreover, these long-term financial relationships formed part of an even longer, multilayered relationship of intermarriage, ritual cooperation, and territorial arrangements between the lineages involved.57 This relationship involved a process whereby one party established long-term ties with the members of a neighboring village, lent money to these members while taking their land as security, and gradually gained rights over the land, finally purchasing it outright. Such dynamics often involved a shift in local power relations, with the creditor/purchaser (or his lineage) increasing his power while establishing close yet unequal relationships with the debtor/vendor, encroaching on his material base.58 The categories of land transaction used in Qing China were institutionally designed so that various rights were retained by the party alienating the land rights. Transactions could be redeemable, in the first instance, either as a dian or a “live” sale. Even after an “absolute” sale, the vendor could retain rights to zhaojia, that is, additional payment. These rights were not unlimited, and Marcel Mauss himself draws attention to Pierre Hoang’s observation in Jiangxu Province where deeds of tanqi were drawn up such that the previous owner could ask for one last payment when all rights to additional payment were exhausted.59 When the possibilities of additional payment were eventually exhausted, the original vendor still retained the position of previous owner (yuanyezhu), and as such could claim rights of prior purchase or, in certain regions, demand payment when the current owner sold the property to a third party.60 The retention of certain rights over alienated property functioned in a way that prevented social change from taking place too easily, but also ensured that, when change did occur, it occurred in a relatively peaceful manner. The institutions allowing such retention served to impede the transfer of land and territorial change that would arise through transactions of land and credit. As long as the original owners could secure funds, they could recover the initial state of affairs by exercising the rights they retained in the alienated property. More importantly, however, when circumstances were such that these parties could not recover their property, these institutions ensured the long-term nature of transactions, allowing the parties to acquaint themselves with each other, establish various relationships not limited to credit/debt, and proceed relatively smoothly to a new social condition where the newcomers and incumbents had a different relationship from before.61 A comparison with Tokugawa Japan that can be made for the above analysis of the Chinese property regime is that the Tokugawa Shogunate prohibited perpetual (absolute) sales of farmland for over 230 years.62 Such a law would have been easier to enforce in a smaller society like Japan (with the ruling samurai class constituting a far higher percentage of the population than the officials in China), a result being that a highly complicated system of “pawning” land developed, including a transaction where the original owner’s right of redemption did not expire with the passage of time.63 The Shogunate’s position on foreclosures oscillated, which is not surprising given the tension within society where perpetual alienation was prohibited but land continued to be used as security in credit/debt relations; the Meiji land reform drastically changed this system, paving the way for “modern” ownership rights.64 The traditional land regimes of Japan and China had certain similarities, in that there existed systematic impediments to foreclosures and total transfer of property, with parties retaining claims over alienated property in the course of long-term transactions. At the same time, certain contrasts can be drawn in terms of the role of the state. Complete alienation and foreclosures were explicitly prohibited and the prohibition enforced in Japan, while in China this was impossible. Moreover, control and presence of the state was felt much more closely in Japan than in China, with Japanese families primarily identifying themselves with their respective functions in the state apparatus.65 In the Chinese case, the process of local social formation through debt and land acquisition was closely connected with lineage building, where lineage groups constituted units of settlement and a dominant form of social organization. Lineage building, which went hand in hand with the formation of territorial entities such as villages and inter-lineage alliances, was also an important dimension of state building. Lineage building in southern China during the Ming and the Qing dynasties involved a proactive self-identification with a Confucian state culture, adaptation to the Chinese cultural repertoire, as well as internal coordination that allowed lineages to pay taxes as a group. This in turn was part of a much longer process through which different parts of China became integrated into the state. Chinese lineages regarded themselves as descending from high officials of past dynasties, and their loyalty was not to a particular dynasty, be it the Ming or the Qing, but to a longer continuity of dynasties on which the Mandate of Heaven was conferred at different periods of time.66 Thus their allegiance to the lineage, the continuity of their own male line, would not be influenced by the rise or fall of a particular dynasty. The notion of the state being what it was, the following opinion expressed by a Japanese former samurai in 1897, shortly after the Sino-Japanese War, is not surprising: The Chinese, in general, are not bothered by small matters. In Japan, we made a huge fuss about winning the war, but to the Chinese, a change of Emperor or a defeat in war gives them almost no excitement. . . . This is not surprising, as regardless of whether a dynasty falls and is taken over by another, or they are defeated in war and their land becomes the territory of another country, their society as a whole is preserved as before. Society has no relationship with the rise or fall of the state.67 Conclusion A. History of Interactions In this Article, I have discussed one way of understanding land transactions, lineage building, and state formation in the context of social structuring in Qing China. In doing so, I started from the actual processes of interaction between Western legal systems and Chinese practices, and I identified some of the problems and social processes that were highlighted in this interaction. I then used these as a starting point for investigation into the dynamics of a historical society in which problematic institutions (problematic in the sense that an insufficient understanding of them appeared to aggravate the problems that arose in the process of interaction), such as those of land transactions or lineage property holding, were formed, manipulated, and interacted with other institutions. I have presented this as an approach to comparative legal studies, where an important objective is the historical reconstruction of institutions that are objects of meaningful comparison, meaningful to the advancement of our understanding of law. This approach explicitly starts with a specific historical process rather than a theoretical program, be it a functionalist comparison between different “systems” that achieve overlapping ends or a larger question such as historical divergence informing the comparison. By anchoring the analysis in a historical process that involved both Western legal institutions and social institutions that were organized in accordance with a different rationality, this approach will perhaps ensure a relatively stable starting point that avoids making unwarranted assumptions about certain societies, regarding such points as whether there was a “family law” at all in traditional China, or whether a land “sale” was actually a matter of “property” in one of the traditional European senses. Moreover, to the extent that this approach uses the problems identified in the interaction as a starting point for further analysis, it is different from an approach that concentrates its attention on the interaction itself. While this approach will necessitate a departure from the relative safety of having a limited and well-defined object of study, it opens up a range of possibilities in understanding the legal and implications of the historical society it chooses to analyze.68 B. East–East Comparisons As this approach of starting with a historical interaction between two cultures aims to bring about meaningful comparisons for law, it is important to note how there are different levels of comparison. First, there is the implied comparison between aspects of the two societies that are in contact. This approach would allow for an analysis of how the process of interaction influenced both sides, and one could then identify problems such as the historical actors’ mutual misunderstanding or the changes undergone by the societies in question. This introduces the possibility of the next level of comparisons, not limited to the two societies interacting with each other. According to the choice of the objects of this second kind of comparison, different aspects of the societies analyzed would be emphasized. It is not always clear what is the fruitful comparison to make, but it seems clear that comparisons such as those between China and Japan bring insights different from comparisons with the West. Regarding traditional Chinese society, one type of comparison that has been made in a number of scholarly works is that with Western classical antiquity. When Shiga Shuzo contrasted the Japanese family and the Chinese family, his knowledge of Roman law led him to draw comparisons that placed the Japanese notion of paternal descent on one side, and the (to him) mutually similar Roman and Chinese notions, on the other. In particular, the notion of zong was explicitly compared with the notion of agnatio in Rome.69 Moreover, parallels between Ancient Greek society and Chinese society have also been drawn by the Hellenist Louis Gernet and the Sinologue Marcel Granet, both working in the tradition of Émile Durkheim and Marcel Mauss.70 The affinity between the Chinese long-term transactions and Maussian notions of échange and prestation totale go further than was implied by Mauss himself.71 C. A Wider Range of Comparison and How It Could Relate to Law Another classicist, Moses Finley, wrote, in referring to anthropology and the classics, that “[i]deally we should create a third discipline, the comparative study of literate, post-primitive . . . pre-industrial, historical societies.” As examples, he cites “pre-Maoist China, pre-colonial India, medieval Europe, pre-revolutionary Russia, medieval Islam.”72 This appears to open up the comparative program to a global scale. Finley’s dictum was made in attempting to identify objects of comparison that would aid in the understanding of classical antiquity. In that respect, global comparisons in comparative law would be most fruitful if they could contribute to a wider jurisprudence. Moreover, the introduction of this perspective of global comparative law can in turn enrich the understanding of historical societies and their interactions with each other. The property regime of the Qing, where long-term transactions necessarily bring about a situation where multiple claims exist in one plot of land, but where the state is unable to enforce any of these claims without the cooperation of the parties involved, necessitated a complex system regarding possession. In spite of the unenforceability of judgments, the prestige of the Qing state was supreme, and the government was far from impotent. This complexity of statehood and its ability to guarantee property rights comes close to the debate regarding the foundations of property. A full argument on this point, however, will have to be made in another context. Footnotes 1 Arnaldo Momigliano, The Classical Foundations of Modern Historiography 155 (1992). 2 See, e.g., James Gordley, Comparative Law and Legal History, inThe Oxford Handbook of Comparative Law 753 (Reinhard Zimmermann & Mathias Reimann eds., 2006). 3 See, e.g., Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law 9 (2013), on how “Western thought has classified and evaluated knowledges, civilizations, polities, persons, and literally everything else for at least two millennia” through these notions of the universal and the particular, and how Chinese law came to be seen as the “particular,” the “other.” Similarly, see how sixteenth-century French humanist jurists challenged the universal authority of Roman law in France based on the prevalence of the coutumes, just as Huguenot intellectuals challenged the universality of the Catholic Church. See Robert Launay, Montesquieu: The Specter of Despotism and the Origins of Comparative Law, inRethinking the Masters of Comparative Law 22, 23–24 (Annalise Riles ed., 2001). Moreover, note how the historical school of nineteenth-century German jurisprudence—while opposing the universality of natural law—would be divided into the Romanists and Germanists, the latter emphasizing Germanic customs while the former gave weight to the reception and practice of Roman law in the Holy Roman Empire: seeH.F. Jolowicz, Roman Foundations of Modern Law 22 (1957). 4 See, e.g., Montesquieu: The Spirit of Laws 126ff. (Anne M. Cohler, Basia C. Miller & Harold S. Stone trans. & eds., Cambridge Univ. Press 1999) (1748); Max Weber, Economy and Society: An Outline of Interpretive Sociology 818 (Guenther Roth & Claus Wittich trans. & eds., Univ. of California Press 1968) (1922). 5 John H. Wigmore, The Administration of Justice in Japan (pts. 1–3), 45 Am. L. Reg. & Rev. 437, 491, 628 (July–Oct. 1897); Jean Escarra, Le droit chinois (1936). 6 For a discussion of how Japanese and Chinese law have been treated similarly in this context, see Li-Wen Lin & Curtis J. Milhaupt, We Are the (National) Champions: Understanding the Mechanisms of State Capitalism in China, 65 Stan. L. Rev. 697 (2013). 7 Teemu Ruskola describes this process as one where “one particular idea of law has become a global standard for constituting free individual as well as democratic states. In the process, it has remade the world, and human beings’ relationship to it. In a sense, law has clearly won the day.” SeeRuskola, supra note 3, at 27. 8 Maruyama Masao & Katô Shûichi, Honyaku to Nihon no Kindai [Translation and Japanese Modernity] 119–30 (1998). 9 Other translations, either directly from the English or from the Chinese, were published in 1868, 1870, and 1882. 10 Watanabe Hiroshi, Nihon Seiji Shisôshi: 17–19 Seiki [A History of Japanese Political Thought from the 17th to the 19th Century] 343–62 (2010). Such idealization was also influenced by earlier representations of the West offered to the Chinese by Christian missionaries (the most influential of which was the Zhifang waiji, edited by the Jesuit Giulio Aleni and published in 1623), which deliberately used Confucian concepts and ideals to depict aspects of Western societies. 11 Maruyama & Katô, supra note 8, at 120; less directly, see Watanabe, supra note 10, at 360. Regarding the controversy on this point, see 1 Inada Masatsugu, Meiji Kenpô Seiritsushi (jô) [History of the Formation of the Meiji Constitution] (1960). 12 Ôkubo Yasuo & Takahashi Yoshiaki, Boissonade Minpôten no Hensan [Codification of the Boissonade Civil Code] (1999). 13 As an illustration, note the breadth of paradigms cited in Hozumi Nobushige, Hôtenron [Theory of Legal Codes] (Tokyo, Tetsugaku Shoin 1890), and Hozumi Nobushige, Hôsô Yawa [Nocturnal Tales of the Law] (1916) [hereinafter Hozumi, Hôsô Yawa]. 14 While the controversy over the civil code is the best known, similar debates on the commercial code and penal code were carried out over the same period, and formed a larger discussion on legal modernization. 15 Hozumi, Hôsô Yawa, supra note 13. 16 Id. 17 In Wanguo gongfa, the text credited with first introducing Western legal concepts to Japan, “custom” is translated completely differently, using the term changli (常例). In an official Japanese translation of this book, with a foreword written in 1876, “custom” is translated as shûkan (using the same exact characters as the Chinese xiguan), while retaining the transliterated English word in the text. 18 1 Tomii Masaaki, Minpô Genron dai 1 kan sôron jô [Basic Theory of Civil Law] (17th ed. 1922). 19 Jolowicz, supra note 3, at 21. 20 Id. The author draws on the example of Gratian putting all human law (as opposed to divine or natural law) under the heading of “mores.” 21 Launay, supra note 3, at 23–24. 22 Jolowicz, supra note 3, at 22. 23 Minji kanrei ruishû [Collection of Types of Civil Customary Practices] (Ikuta Kuwashi et al. eds., Tokyo, Shihôshô [Ministry of Justice] 1877); Zenkoku Minji kanrei ruishû [Nationwide Collection of Types of Civil Customary Practices] (Ikuta Kuwashi ed., Tokyo, Shihôshô 1880). The survey itself is known to have been recommended by the American advisor George W. Hill, who considered “modern laws” to be ill suited to the Japanese situation; he advised that the Japanese should construct a legal system based on their own traditions and customs, drawing parallels from Justinian’s enterprise of rewriting the Roman law. It has been pointed out that there was some confusion on the part of the Japanese in the understanding of this recommendation, and that this confusion led to the collection of local customs rather than defining the “customs of the realm” that would develop into a common law (the latter being Hill’s suggestion). Minji kanrei ruishû [Collection of Types of Civil Customary Practices] 17 (Tezuka Yutaka & Rikô Mitsuo eds., 1969) [hereinafter Minji kanrei ruishû, 1969]. 24 Minji kanrei ruishû, 1969, supra note 23; Kawaguchi Yoshihiko, Nihon Kindai Hôseishi [Modern Japanese Legal History] (2d ed. 2015). 25 Tomii, supra note 18; Uno Fumie, Meiji minpô kisô iin no “ie” to koshuken rikai: Tomii to Ume no “shinzoku-hen” no giron kara [An Analysis of the Concepts of “iye” and the Right of House-Head (Koshu-ken) in the Process of Japanese Civil Law Codification], 74 Kyûshû Daigaku Hôsei Kenkyû 57 (2007). Moreover, although changes were made in strengthening the power of the household head, it was argued that the incorporation of such elements of the traditional family was necessary for a smoother transition to a new family system. 26 Minpō [Minpō] [Civ. C.] 1898, arts. 263, 294. 27 Nishi Hideaki, Taiwan Shihô no Seiritsu Katei [The Formation of the Taiwan Shihô] 30–32 (2009). 28 Shimada Masao, Shinmatsu ni okeru Kindaiteki Hôten no Hensan [Compilation of Modern Codes During the Late Ch’ing Period] (1980); Yu Chen (陈煜), Qingmo Xinzheng zhongde Xiuding Falüguan: Zhongguo Falü Jindaihua de Yiduan Wangshi (清末新政中的修订法律馆:中国法律近代化的一段往事) [The Law Revision Commission in Late Qing Political Reform: A Set of Events in Chinese Legal Modernization] (2009); Nishi Hideaki, Kindai Chûka Minkoku Hôsei no Kôchiku: Shûkan chôsa, Hôten Hensan to Chûgoku Hôgaku [The Construction of a Modern Legal System in the Republic of China: Custom Surveys, Codification, and Chinese Jurisprudence] (2018). 29 58 Qing Shilü (清实录) [Veritable Records of the Qing Dynasty] 429–31 (Beijing, Zhonghua shuju ed. 1987); 2 Zhang Zhidong Quanji, Zouyi (张之洞全集 2 奏议) [Collected Works of Zhang Zhidong, Memorials] 1449–50 (Yuan Shuyi ed., 1998). 30 Mitsukuri Rinshô kun Den [Biography of Mitsukuri Rinshô] 100–01 (Ôtsuki Fumihiko ed., 1907). 31 Jérôme Bourgon, Uncivil Dialogue: Law and Custom Did Not Merge into Civil Law Under the Qing, 23 Late Imperial China 50 (2002). 32 Shiga Shûzô, Shindai Chûgoku no Hô to Saiban [Law and Justice in Qing China] 357 (1984). The Chinese and Japanese terms use the same two (Chinese) characters in reverse order, and are often used interchangeably. 33 Nakamura Tetsuo, Shinmatsu no Chihô Shûkan Chôsa no Hôkokusho ni tsuite [On the Provincial Custom Survey Reports of the Late Qing], inNunome Chôfû Hakushi Koki kinen ronshû: Higashi Ajia no Hô to Shakai [Law and Society in East Asia: Festschrift for Nunome Chôfû] (Nunome Chôfû Hakushi Kinen Ronshû Kankôkai Henshû Iinkai [The Editorial Comm. of the Festschrift Publ’n Soc’y for Dr. Nunome Chôfû] ed., 1990). 34 Jérôme Bourgon, Rights, Freedoms, and Customs in the Making of Chinese Civil Law, 1900–1936, inRealms of Freedom in Modern China 84 (William C. Kirby ed., 2004). For a more skeptical view, see Nishi, supra note 27. 35 Nishi, supra note 28, at 52–60. 36 Judgment 2 of Feb. 1, 1913 & Judgment 64 of July 5, 1913, reproduced in Daliyuan Minshi Panli Jicun (1912–1928) Zongzebian (大理院民事判例輯存 (1912–1928) 總則編) [A Compilation of the Civil Precedents of the Supreme Court in the Early Republic of China (1912–1918): The General Principles] 1, 7 (Huang Yuan-sheng (黄源盛) ed., 2012). 37 Nishi, supra note 28, at 60–61 (showing the parallels between the wording of the judgment and texts in Okada Asatarô, Hôgaku Tsûron [Outline of Legal Studies] (1908), which contained his lectures in China, and Hozumi Nobushige, Hôritsu Shinkaron [Evolutionary Theory of Law] (1924)). 38 Lee Youngmee, Kankoku Shihô Seido to Ume Kenjirô [The Korean Judicial System and Ume Kenjirô] (2005). 39 Nishi, supra note 28, at 197. 40 Nishi, supra note 27, also mentions surveys that were conducted in the South Pacific and Southeast Asia during World War II. 41 Chûgoku Nôson Kankô Chôsa [Investigation of Rural Chinese Customs] (Comm. for the Publ’n of the Rural Customs & Practices of China ed., 1952–1958). 42 Note, in particular, the role of Suehiro Izutarô, whose interest in “living law” formed both a dominant current in civil law scholarship and pioneered the field of legal sociology in Japan. In particular, it is worth noting here that scholars of the 1930s and 1940s were well aware of the dangers of distorting traditional Chinese practices by trying to understand them through preconceived (legal) concepts. SeeFukushima Masao, Chûgoku Nôson Kankô Chôsa to Hôshakaigaku: Tokuni Suehiro Hakushi no Hôshakaigaku Riron wo Chûshin to shite [The Chûgoku Nôson Kankô Chôsa Surveys and the Sociology of Law: Centering on the Legal Sociological Theory of Suehiro] (1957). 43 Just to take up two examples, the extensive use of the surveys in Prasenjit Duara, Culture, Power and the State: Rural North China, 1900–1942 (1988), was influential in the subsequent development of the scholarship’s understanding of local social formation through lineage and village, and the relationship between these local processes and the functioning of the Chinese state. More recently, Taisu Zhang makes use of the surveys in conjunction with an analysis of Qing archives, looking into how kinship considerations affected land transactions. SeeTaisu Zhang, The Laws and Economics of Confucianism: Kinship and Property in Preindustrial China and England (2017). 44 An early treatment was Shimizu Morimitsu, Chûgoku zokusan seido kô [A Consideration of Lineage Property in China] (1949). Maurice Freedman introduced it widely to the Western readership by interpreting it in the terminology of structural-functionalist social anthropology. SeeMaurice Freedman, Lineage Organization in Southeastern China (1958). 45 Matsubara Kentarô, Sôzoku to Zokusan wo meguru Dentô Chûgoku Shakai: Honkon chiiki no sho-jirei ni rikkyaku shita kôzô bunseki [Lineage Property Holding and Social Structures in Traditional China: An Analysis Based on Cases from the Hong Kong Region], 116 Hogaku Kyokai Zassi 1098 (1999). 46 Shiga Shuzô, Chûgoku Kazokuhô no Genri [Principles of Chinese Family Law] (1967). 47 See, e.g., the formulation in Ip Cheong-kwok v. Ip Siu-bun & Others, [1988] 2 H.K.L.R. 247, 253 (H.C.). For an analysis of the legal argumentation in the colonial courts, see Kentaro Matsubara (Songyuan Jiantailang, 松原健太郎), Shi xintuo haishi faren? Zhongguo zongzu caichan de guanzhi wenti (是信托还是法人?中国宗族财产的管治问题) [Trust or Corporation? Problems of Governance in the Management of Chinese Lineage Property], 7 Lishi Renleixue Xuekan 2 (2009). 48 On this formulation, dubbed the Jisi Gongye, see Wang Tay-sheng, Legal Reform in Taiwan Under Japanese Colonial Rule, 1895–1945 (2000). 49 Chinese Law and Custom in Hong Kong: Report of a Committee Appointed by the Governor in October 1948 (George Strickland, et al. eds., 1953); Rinji Taiwan Kyûkan Chôsakai Dai Ichibu Hôkoku: Taiwan Shihô Furoku Sankôsho [Private Law of Taiwan, with Appended Reference Volumes] (Temporary Comm. for the Investigation of Taiwanese Old Customs ed., 1901–1911). 50 Ruskola, supra note 3, at 27. 51 SeeTerada Hiroaki, Chûgoku Hôseishi [China’s Traditional Legal Order] (2018); Contract and Property in Early Modern China (Madeleine Zelin, Jonathan K. Ocko & Robert Gardella eds., 2004); Zhang, supra note 43; Patrick Hase, Custom, Land and Livelihood in Rural South China: The Traditional Land Law of Hong Kong’s New Territories, 1750–1950 (2013); Kentaro Matsubara, Traditional Land Rights in Hong Kong’s New Territories, inTreaty-Port Economy in Modern China: Empirical Studies of Institutional Change and Economic Performance 147 (Billy K.L. So & Ramon H. Myers eds., 2011) [hereinafter Matsubara, Traditional Land Rights]; Kentaro Matsubara, Credit Institutions and the Land Market in the New Territories of Hong Kong: Local Social Structuring and Colonisation, inColonial Administration and Land Reform in East Asia 103 (Sui-wai Cheung ed., 2017). 52 Kentaro Matsubara, Land Registration and Local Society in Qing China: Taxation and Property Rights in Mid-Nineteenth Century Guangdong, 8 Int’l J. Asian Stud. 163 (2011). 53 Shiga, supra note 32, at 149–87. 54 Matsubara, supra note 52. 55 David Faure, Emperor and Ancestor: Lineage and State in South China (2007). 56 For background, see David Faure, The Structure of Chinese Rural Society: Lineage and Village in the Eastern New Territories, Hong Kong (1986) (discussing the collection of material through the Oral History Project); Helen Siu, Key Issues in Historical Anthropology: A View from “South China,” 13 Cross-Currents E. Asian Hist. & Culture Rev. 174 (2014). 57 Matsubara Kentaro, Keiyaku, Hô, Kanshû: Dentô Chûgoku ni okeru Tochi Torihiki no Ichi-sokumen [Contract, Law, and Custom: An Aspect of Land Transactions in Traditional China], inShihai no Chiikishi [The Regional History of Dominance] 44 (Hamashita Takeshi & Kawakita Minoru eds., 2000). 58 Id. 59 Marcel Mauss, Essai sur le don: Forme et raison de l’échange dans les sociétés archaiques, L’Année Sociologique Nouvelle Série Tome I (1923–1924), at 30, 158–59 (1925) Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies 63–64 (W.D. Halls trans., 1990); Pierre Hoang, Notions techniques sur la propriété en Chine, avec un choix d’actes et de documents officiels 10, 109, 133 (Shanghai, Imprimerie de la Mission Catholique ed. 1897). 60 Matsubara, Traditional Land Rights, supra note 51. 61 Id. 62 Generically known as the Denpata Eidaibaibai Kinshirei, indicating three separate regulations issued in 1643, explicitly repealed by the Meiji government in 1872. 63 This form of pawning was called Ariawase shicchi. See Kentaro Matsubara, The Meiji Land Reform and the Formation of Modern Land Rights in Japan, inColonial Administration and Land Reform in East Asia,supra note 51, at 37, 38. 64 Id. at 38–40. 65 On this identification with the state, and the notion of kashoku kokka (“nation of family businesses”), see Watanabe,supra note 10. 66 Faure, supra note 56. 67 Katsu Kaishû Hikawa Seiwa [Pure Discourse in Hikawa] (1897), cited inSannosuke Matsumoto, Kindai Nihon no Chûgoku Ninshiki [How the Japanese Recognized China in the Modern World] 120, 120–21 (2011) (translated by author). 68 For comparison, see Taisu Zhang, Beyond Methodological Eurocentricism: Comparing the Chinese and European Legal Traditions, 56 Am. J. Legal Hist. 195 (2016). 69 See Shiga, supra note 46, at 7, for an explicit statement of the comparative program; see also id. at 19–21, for the initial treatment of zong and agnatio. Parallels are also drawn, for example, between the range of meaning in the Chinese term jia and that of the Latin familia, or between individual property (as opposed to household property) in China and the Roman notion of peculium. Id. at 508. 70 For a critical assessment, see S.C. Humphreys, Anthropology and the Greeks 86–87, 286 (1978). 71 Mauss, supra note 59; Matsubara, Traditional Land Rights, supra note 51. 72 Moses I. Finley, Anthropology and the Classics, inThe Use and Abuse of History 102, 119 (1975). © The Author(s) [2019]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

East, East, and West: Comparative Law and the Historical Processes of Legal Interaction in China and Japan

American Journal of Comparative Law , Volume Advance Article – Feb 3, 2019

Loading next page...
 
/lp/oxford-university-press/east-east-and-west-comparative-law-and-the-historical-processes-of-YGGoVWIH0v

References (0)

References for this paper are not available at this time. We will be adding them shortly, thank you for your patience.

Publisher
Oxford University Press
Copyright
© The Author(s) [2019]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com.
ISSN
0002-919X
eISSN
2326-9197
DOI
10.1093/ajcl/avy044
Publisher site
See Article on Publisher Site

Abstract

Abstract As Western notions of law formed the basis of a globally shared common legal language, the language of comparative law has become inevitably Western. In studying historical societies that did not share this language, analyses using this language will always risk anachronisms due to the inherent assumptions, be they the meanings given to particular terms, or the manner in which different areas of law are categorized and distinguished from each other. One way to avoid such anachronisms would be to attempt the formulation of a different concept of law that is neutral to Western and non-Western legal traditions. This, however, would move the analysis away from discussions in other areas of legal studies conducted in the aforementioned common legal language, which in turn would limit the significance comparative law might have for these discussions. In looking at the historical processes of legal modernization in China and Japan, this Article discusses how one might manage the risk of anachronism in writing a legal history of non-Western societies, while also retaining a link with a wider range of legal studies. After Part I considers some of the theoretical problems of studying Chinese and Japanese society as a project in comparative law, Part II will look at the debates on legal reform in China and Japan in the late nineteenth and early twentieth centuries. While these debates included serious discussions on incorporating traditional aspects of Chinese or Japanese society in the newly formed Western-style legal system, the discussions themselves were conducted in an essentially Westernized language, which identified the traditions of Japanese and Chinese as “customs,” a legal notion newly introduced in the course of modernization. While looking at certain traditional practices and institutions as “custom” might have been an anachronism, the extent and significance of this anachronism can be assessed through a study of the process of interaction whereby this viewpoint came to be adopted. Part III of this Article suggests an approach to studying the traditional Chinese property regime, also starting from a study of the historical process of interaction between Western colonial law and local society in China. Using an analysis of this interaction as a starting point, it discusses how relevant aspects of Chinese society and their interconnections might be identified, opening up possibilities for comparisons not limited to East–West comparisons, and it also contributes to a more general legal discussion on family, property, and state formation. Introduction In a world where it has become a commonplace to question the disciplinary boundaries between history, anthropology, and sociology, and where serious doubts have been expressed as to whether these could remain different disciplines,1 one has the impression that it might be more difficult to envisage comparative law without any form of historical perspective, or legal history without any comparative element.2 Legal systems and legal cultures develop over time, and today very few, if any, legal systems have not incorporated varied elements with their origins in a number of different legal traditions, be they Roman, Ecclesiastic, Germanic, Islamic, or Chinese. When such incorporation took place in the formation of these legal systems, there would often be some conflict between what were deemed “universal” norms, on the one hand, and elements that were seen as more “particular” to certain cultures, on the other.3 The historical process of the formation of a legal system is unique, with individual personalities, political circumstances, and historical accident all playing a part. There is, however a certain universality to the manner in which the language of the universal versus the particular is employed, and the different traditions are reinterpreted and reformulated in this context so as to fit into the new legal system. In the formation of modern legal systems in East Asia, the above process took place with the “universal” mostly taking the form of “Western” law, either specific examples of it or under such overarching notions as “Western principles.” In this short Article, I will trace the relatively complex historical process of the interaction between Japanese, Chinese, and Western legal traditions in the formation of modern, Westernized legal systems in China and Japan. I will then try to exemplify how writing such a history of interaction might contribute to some of the projects of legal history and comparative law. I. China, Japan, and Comparative Law Both China and Japan have been objects of interest in the discussions on comparative law for generations. Thinkers such as Montesquieu and Max Weber have incorporated analyses—however limited—of these societies in their treatises regarding (among other topics) the dangers of despotism in France, or the particularity of the European tradition in creating formal, rational law.4 In the processes of late-nineteenth- to early-twentieth-century legal modernization in these countries, John Henry Wigmore and Jean Escarra, each in his capacity as an advisor of one form or another, offered serious considerations of how traditional Japanese and Chinese societies and their customs worked, and how a Western-style legal system could operate in such an environment.5 More recently, the economic ascent of Japan in the 1980s and China in the 2000s have triggered arguments about how such processes, involving economic success and political organization, might be connected to the content and the workings of Japanese or Chinese law. Such attempts might discuss the merits of Chinese or Japanese forms of corporate governance in questioning the efficacy of Western practices or ask probing questions concerning the legitimacy of certain (traditionally non-Western) practices in the arena of global capitalism.6 While the motives informing the comparison have been diverse, one aspect common to these comparisons, needless to say, is that the comparison itself is Western: first, in the sense that one is constantly comparing Japan or China with the West, and second, in that the interests and the methods of comparison are those formed in a primarily Western context. It is this second sense in which the comparison itself is “Western,” which poses a problem in comparative law. The particular features of a society that one chooses to focus on as part of an exercise in comparative law (what one defines as law in the first place) are already informed by a Western notion of law. At worst, this allows the comparison to become a simple story of absence, noting how aspects such as “the rule of law” or “strong property rights” did not exist in traditional China or Japan. At best, the comparison can take account of the Japanese/Chinese social context with empirical depth, describing their institutions in their own terms. However, even in this latter case, the description has to be made in some form of common legal language, and through the course of history this legal language has become one based on Western notions of law.7 Thus, the study of the legal history of societies such as traditional China or Japan would be inherently comparative. Describing these societies using the type of common legal language mentioned above necessarily involves an implied comparison. Such an exercise would strive to be an accurate account of the society it portrays and to make a meaningful contribution to legal studies. This will constantly involve the ubiquitous tension between, on the one hand, the authentic reconstruction of practices and institutions, based on an understanding of the categories as they were used at a certain point in time by the Japanese or Chinese themselves and, on the other hand, the necessary anachronism of looking at these institutions in such a way that might be relevant to the (perhaps unfortunately Eurocentric) legal discourse of the scholar’s own time and place. Moreover, if one attempts a comparison between China and Japan, as I will below, the exercise becomes a three-way comparison, as it necessarily involves phenomena in the two societies being interpreted through the West-informed language of law. Acknowledging that Japanese or Chinese legal discourse today is conducted in this West-informed language of law, a practice that is clearly Eurocentric in its origin, is not to be defeatist. The Americans, the British, and the Germans all chose, at different points in their history, to recognize a totally foreign ancient Greek culture—whose language they originally could not read and which had never taken root in their own lands—and accept it as their own “classical antiquity,” modeling their social institutions on Greek democracy, a term they never translated from the original Greek (dēmokratía). Their democracies were formulated differently from those of Greek city-states, and the Greeks today claim no superiority in political theorization or institutional design over these societies. Similarly, the Japanese and the Chinese chose, in the late nineteenth and early twentieth centuries, to base their legal institutions on foreign models, either accepting them as universal, or reluctantly seeing the acceptance as a political necessity. Either way, once China and Japan become fully integrated as users of this common legal language and develop their own legal practices and theories, they will also become part of a dialogue that might innovate, change, or transform how law is understood more generally. This Article will first trace the initial interaction process between Japan, China, and the West in the building of modern Chinese and Japanese legal systems. It will then focus on one aspect of how the process of interaction changed the thinking of Japanese and Chinese jurists, namely, the moment when they began to assess certain aspects of their traditions as “customs.” The Article will then try to exemplify how, through studying this interaction, we might come to a better understanding not only of traditional Chinese and Japanese institutions, but also of certain aspects of Western law itself. II. Japanese/Chinese Legal Modernization and Reformulation of Practices as “Custom” In this Part, I will look at the processes of legal modernization in Japan and China, paying particular attention to how the two processes were intertwined, and how traditional practices were reformulated in accordance with the received Western notion of “custom.” This took place amid China–Japan interactions involving Japanese imperial expansion on the one hand, and Chinese pragmatism in using the Japanese model for their own legal modernization on the other. A. Japan One particular text is widely credited for introducing Western legal concepts to China and Japan. This text, titled Wanguo gongfa, which translates to “Public Law of All Nations,” was a translation of Henry Wheaton’s Elements of International Law (1836), and was translated into Chinese by the American missionary William Martin and published in China in 1864. Although the publication was under the auspices of a department of the Qing government, the political climate was such that it could have only a limited impact in China at the time of publication. It was in Japan, however, where it was published the following year, with added punctuation (to make it readable in Japanese), that the text had a stronger, more immediate impact.8 Following the Perry expeditions and treaties of the 1850s, Japanese policymakers and intellectuals widely discussed the need to become versed in international law and construct a Westernized legal system. Future legislators had already been sent to Europe to study international law, and interest in the Wanguo gongfa was high. Following the punctuated version of 1865, partial translations into Japanese were published in 1868 and 1870.9 Moreover, in advance of these translations, Japanese thinkers had developed a certain discourse regarding the universal value of Western institutions. This was done through equating aspects of Western society with Confucian ideals, and arguing that some of these ideals had been better realized in the West. Institutions such as hospitals and orphanages were represented as realizations of the Confucian notion of benevolence (ren), parliamentary debate was associated with the ideal of public spirit (gong) required of emperors, and the election and non-hereditary nature of the American presidency was equated with the practice of the legendary rulers of ancient China idealized in the Confucian classics.10 The notion that Confucian ideals were better realized outside of China brought a radical change in the assessment of both the past and comparative merits of different societies. It has been argued that through discussions of the Wanguo gongfa (or Bankoku Kôhô in Japanese), with the background of such discourse as above, the notion of the universality of Western legal concepts became widely accepted. An article in the Meiji Emperor’s Charter Oath (promulgated at his ascent to the throne in 1868), which provided for the abolition of malign customs, and the fact that the imperial rule was based on “The Public Way of Heaven and Earth,” even while using Confucian terms, were largely, if not exclusively, based on the notion of a universal international law, inspired by the translation of the Elements.11 However, the acceptance of Western legal concepts, introduced in the translation of the Elements, did not happen without resistance. On the one hand, policymakers were constrained by the conditions of the “unequal treaties” that necessitated the enactment of certain legal codes in accordance with “Western principles,”12 and versions of legal codes based on what Chinese and Japanese policymakers perceived to be “Western” principles were drafted from the earliest days of the Meiji. On the other hand, not only were there critics of the process, who called for the preservation of what, in their opinion, were Japanese values, but those involved in the drafting of codes themselves were far from simply advocates of “Western principles.” They were well aware of the tensions within European society involving the different legal traditions, notions of the universal versus the particular, and contemporary developments in the social sciences regarding social evolution, customs, and law.13 While it is not an objective of this Article to assess the different factors at play in the complex controversy that ensued in the codification process,14 two aspects are worth pointing out. First, throughout the discussions, extensive comparisons were made by the participants, both among Western legal systems and between the Japanese debates regarding codification and polemics elsewhere in the world. Second, the process involved a consideration of what aspects indigenous to (traditional) Japanese society should be included in the civil code. This consideration would have a long-term effect not limited to Japanese law. The various comparisons were a natural consequence of the circumstances under which the Japanese tried to draw examples from different legal systems. Systematic teaching of English, French, and German law was carried out both at the Imperial University and in private law schools, and the students of these systems were keenly aware of the latest legal developments in the respective countries. Members of the Investigation Committee of Codes later wrote how it was suggested that the new civil code take the form of the Saxonian Civil Code of 1863–1865, and how the German model was thought to be more “modern” than the (Napoleonic) French Civil Code. Moreover, an explicit parallel was drawn between the controversy regarding the civil code in Japan and the codification debate between Friedrich Carl von Savigny and Anton Thibaut in early-nineteenth-century Germany.15 Rather than seeing the controversy as a clash between Western law claiming universality and Japanese traditions, the understanding was that the controversy itself replicated an earlier Western debate between natural law theorists and historical jurisprudence.16 The reassessment of the Japanese past had been reformulated as a series of discussions surrounding Japanese “customs.” Japanese jurists had developed the notion of kanshû (which represented their understanding of the Western concept of custom) by the time of the controversy. It is difficult to pinpoint the original usage of the term kanshû, but it is worth noting that when the term occurs in the context of debates regarding legal modernization, it is used effectively as a translation of Western terms such as custom or coutume, and not as a term having layers of meaning that originate in the Japanese language before its contact with Western concepts.17 While the vocal opponents of enforcement would talk of the “beautiful ways” of the Japanese that were being threatened, the actual legal discussions would focus on the notion of custom.18 In the West, the focus on custom took place gradually. It was a late development in the history of Roman law, when classical jurists placed importance on professional opinion rather than custom; and while Justinian recognized custom as unwritten law, it is doubtful it played any part in the practice of his time.19 It was in medieval Europe that custom was looked upon as authoritative,20 and became a source of law as “general custom of the realm” in England, or as the coutumes of the various provinces in France.21 Moreover, as the Romanists and Germanists in Germany would debate the relative merits of adopting Germanic customs or Roman law, the Romanists saw the reception and practice of the latter in the Holy Roman Empire as an achievement of customary law.22 Legal modernization in Japan—and later in China—involved the reception of this dichotomy that had developed in Europe between the “universal” and “custom.” Not having a traditional legal system that integrated custom as a source of law, these societies began to identify elements of their past as custom and focusing on them in their legal argumentation through this process of modernization. However, it was not an easy task to decide which customs and traditions to incorporate, and how they could fit into a largely Western legal system. In fact, in the process leading up to the drafting of the civil code, whose enforcement was eventually postponed, a survey of Japanese customs had been commissioned, and the results published in 1877 and 1880.23 These results, however, appear to have had little impact on successive versions of the code, and the customs related by local elders being largely seen either as unusable in the context of a civil law, or too numerous and diverse to be incorporated in the time that was given.24 In the area of family law, the nationalist critics’ rhetoric of a sacred and inviolable right of the family patriarch certainly had an impact, and aided in postponing the enforcement of the code, but there was a stronger notion that the traditional family system was untenable in the changing society of Japan, which finally led to adoption of the Meiji Civil Code, retaining many of the institutions criticized by the conservatives as unacceptable.25 Another set of issues involved certain property rights, such as usufruit, droit d’usage, or lessee’s rights, that were included in the original civil code. These were criticized as threatening to the customary rights of landowners and as undermining the Meiji Code, and a system based on a strong ownership right was created in response to these criticisms. Moreover, the customary practice of iriai (“rights of common”) was incorporated into the Meiji Code; however, rather than making use of the knowledge of the practice accumulated in the surveys, the Code simply provided that these rights would be governed by local custom or by provisions in the relevant sections of co-ownership or servitude, thus missing the opportunity to consolidate this custom and turn it into positive law.26 While there is thus little evidence that the Meiji Civil Code took account of the early custom surveys, there was another significance to these surveys that was not limited to Japan, and this was its role as a model for later surveys carried out in various parts of East Asia.27 B. China The period during which the Japanese civil code was being drafted was also the time of the Sino-Japanese War. In terms of the survey of customs, this led to the establishment of the Rinji Taiwan Kyukan Chosakai (“Temporary Committee for the Investigation of Old Customs in Taiwan”) in 1901. The process whereby legal modernization was initiated in China at the beginning of the twentieth century has been thoroughly examined in the scholarship.28 The memorial that set out this policy, while suggesting the establishment of a Westernized legal system, proposed that this system should be modeled directly on Japan, and that Western laws (and legal terms) be translated not directly from the original languages, but from the Japanese.29 There was a rationale for this decision, since most, if not all, Japanese translations of Western legal terms used Chinese ideograms, and were readily understandable. Moreover, some of the key terms had been adopted by the Japanese from the Wanguo gongfa, and so were originally translations directly into Chinese in the first place.30 A long-term effect of this policy is that, to this day, there is a large overlap between Japanese and Chinese legal vocabulary. This makes it a much easier process for legal students of the two countries to understand each other’s laws, which is remarkable, considering how the two languages are completely different in terms of grammar and basic words, despite the common use of Chinese ideograms. One initiative in this process of legal modernization was the survey of customs. The Chinese term denoting “custom” in this context was xiguan, a term that does not appear in the traditional legal discourse.31 Shiga Shuzo suggested that the term had to be created in the course of the reception of modern legal studies, as an equivalent of the Japanese term kanshû.32 Late Qing custom surveys were conducted separately by two different branches of the government,33 and there is some controversy regarding the extent to which Japanese opinions and practices had a direct influence.34 Either way, interaction regarding the surveys is well documented. Japanese advisors invited by the Qing government strongly recommended surveying customs, and Chinese practitioners refer to Japanese arguments and examples.35 The late Qing efforts of custom surveys and codification ended prematurely with the Republican Revolution of 1911. In 1913, the Dali Yuan, the Supreme Court of the Republic of China, issued two landmark judgments regarding the application of customary law, stipulating the conditions under which customary law can be said to exist, and stating that where there was no clear provision in the written law, customary law would be applied.36 There are a number of Japanese texts, which may have been at the origin of these judgments,37 but regardless of any direct Japanese influence, these judgments necessitated some knowledge of civil and commercial customs by the courts. Moreover, as codification was yet to take place in the newly formed Republic, there was a wide scope for the application of customary law, and numerous recommendations for a thorough survey of customs were made to the government. Following such recommendations, extensive surveys of civil and commercial customs were made between 1918 and 1921, and would produce the Minshangshi xiguan diaocha baogaolü (1930), to this day one of the basic materials for studying legal customs in traditional China. Concurrently with these late Qing and Republican surveys, there were various surveys of customs being carried out by Japanese jurists throughout East Asia. The Taiwanese surveys culminated in the compilation of the Taiwan Shihô (1901–1911), perhaps the most systematic and comprehensive survey of Chinese legal customs to date. A report on Korean legal customs was published in 1913, shortly after the annexation of the peninsula, although the Japanese intervention in codification and custom surveys began in 1906.38 The year 1906 was also the year of the establishment of the South Manchurian Railway Company, and a number of the personnel involved in the Taiwanese surveys, including its leader Okamatsu, would continue the survey of customs in the Northeast.39 Surveys in the Northeast would continue into the 1930s and 1940s producing numerous reports, and after the establishment of Manchukuo in 1931, would form part of the effort for codification.40 Moreover, these surveys would produce the Chûgoku Nôson Kankô Chôsa, reproducing highly detailed interviews regarding the practices in such areas as family, property, commerce, and dispute resolution.41 As we learn more of the processes whereby the surveys were made, it becomes both possible and necessary to critically assess how and why particular practices are described in particular ways. For example, shifting interests within Japanese jurisprudence appears to have informed the difference in style between the Taiwan Shihô and the Chûgoku Nôson Kankô Chôsa.42 Moreover, as the attempt to understand Chinese society on its own terms progresses, it becomes (again) both possible and necessary to place the statements on custom in the wider social contexts in which these statements were made.43 II. Interactions and a Comparative Study of the Qing Property Regime A. Chinese Ancestral Property and Colonial Law One prominent example of identifying certain aspects of traditional society as “custom,” and treating them as such in a modernized legal system, emerged in the courts of Hong Kong. This was the institution known to the scholarship as zuchan, or ancestral property.44 The nominal owner of such property would be a common ancestor of a group of people, and the holding entity would be referred to in the ancestor’s personal name followed by the suffix zu denoting “ancestor,” or in the name of an ancestral hall tang or ci. In some cases, all the land in a village would be held in this form, and all living inhabitants would technically be tenants of the ancestor, tilling the ancestor’s land and paying him rent. In others, a piece of property might be owned in an urban area, and the income from that property would be remitted to a village where the descendants of the owning ancestor resided, providing them with a livelihood. Either way, a manager (or a number of managers) of the holding entity would be appointed from among the lineage members, and this manager would report to the rest of the lineage group.45 On the one hand, this form of holding was especially prevalent in southern China in late Imperial and Republican times, and it is unclear whether the Chinese themselves thought of it as a matter of law. The distribution of the proceeds was made in accordance with customary rules not found in Qing law. This was true of what Western legal systems would treat as family law in general, necessitating scholars to note that in order to reconstruct a “family law” for traditional China, the definition of law could not be a positivistic one, and such “law” had to be found in the “legal consciousness” of the people.46 On the other hand, the colonial legal system of Hong Kong had to formulate a legal interpretation of the practice of ancestral property. The basic paradigm used for this interpretation was that of the trust.47 This analogy certainly captured the aspect of there being no outright owner, but a trustee, or the manager of the property, and a group of beneficiaries who had little control over the management of the assets. In terms of comparative law, this was a typically common law (as opposed to civil law) interpretation of the Chinese practice. The Japanese colonists in Taiwan, coming from a civil law background, would use a different legal analogy for a similar institution.48 Both the British and the Japanese recognized these practices as “custom,” forming part of either “Chinese law and custom” in Hong Kong or Taiwan kyûkan (“old custom of Taiwan”). Extensive surveys of these customs were commissioned in both cases, resulting in detailed reports.49 As we have seen, for the Japanese and the Chinese, employing this notion of custom as a legally meaningful category was a phenomenon new to the period of legal modernization and Westernization in the late nineteenth and early twentieth centuries. This may well be seen as an integral part of how “one particular idea of law has become a global standard.”50 Here, the acceptance of the Western notion of law has affected, if not determined, how the Japanese and the Chinese assessed and formulated a dimension of their own past. One avenue of inquiry is opened up by such interaction between the traditionally Chinese practice of ancestral property, on the one hand, and Western (or Westernized) colonial legal systems, on the other. The lines between family rituals, property holding practices, and state enforcement appear to be drawn differently in traditional Chinese society compared to what is envisaged in the Western legal system. This highlights the necessity (if one were to truly understand the nature of this interaction) of investigating the interrelations between these factors within traditional society, without direct reference to Western legal principles. This leads to questions regarding what might be called the property regime of traditional Chinese society. To the extent that we would initially intend to understand the interrelations—as the Chinese themselves understood them—between factors that might be categorized under such rubrics as family, property, and state enforcement, the term “property regime” might itself be an anachronism. However, by retaining the notion of property in our analysis, the comparative study may aid in the understanding of property in general, i.e., in the common legal language of our time. B. The Property Regime of Qing China and the Intersection of Family, Property, and the State A full-scale inquiry into the property regime of Qing China or a comprehensive survey of the scholarship are beyond the scope of this Article. Various attempts have been made to reconstruct a “property law” for the Qing or to explain institutions such as conditional sale, the practice of supplementary payments after a sale (dubbed zhaojia), or the “one-field, two-owners” system.51 Here, drawing on some of the developments in this and related areas, as well as incorporating analyses of village-level material and drawing on some comparisons with Japan, I will try to indicate one possible direction of inquiry and consider its implications for comparative legal studies. One important point about the Qing “property regime” was that the Qing government was incapable of directly guaranteeing claims to property. First, the land register for taxation was defunct, leaving the government with no information regarding who held which plot of land.52 Second, judgments in land cases were basically unenforceable, partly due to the relative size of the bureaucracy, and the nature of a magistrate’s ruling needing to be accepted by the parties.53 Under these circumstances, a question to be raised is—How could land rights be guaranteed when the Qing state had neither the information nor the capacity that were necessary for doing so? An obvious place to look might be the local communities and their leadership. Indeed, it was through such leadership that land taxation could work despite the government’s lack of information regarding who held what land.54 The last decades have seen much advancement in our knowledge concerning the dynamics of how local communities were formed through the complementary principles of lineage and territory.55 This was partially aided by the growing availability of village-level documentation, including not just land deeds and account books, but also genealogies, notes on grave location, almanacs for daily use, and geomancy documents, all pertaining to the social organization of the same village.56 Through a reconstruction of consecutive land transactions as part of the social process of lineage building and checking the land deeds against the account books, it was revealed how each land transaction was performed as part of a financial relationship over extended periods of time, even though a simple reading of the land deed itself would suggest a single transaction on the day of the deed. Moreover, these long-term financial relationships formed part of an even longer, multilayered relationship of intermarriage, ritual cooperation, and territorial arrangements between the lineages involved.57 This relationship involved a process whereby one party established long-term ties with the members of a neighboring village, lent money to these members while taking their land as security, and gradually gained rights over the land, finally purchasing it outright. Such dynamics often involved a shift in local power relations, with the creditor/purchaser (or his lineage) increasing his power while establishing close yet unequal relationships with the debtor/vendor, encroaching on his material base.58 The categories of land transaction used in Qing China were institutionally designed so that various rights were retained by the party alienating the land rights. Transactions could be redeemable, in the first instance, either as a dian or a “live” sale. Even after an “absolute” sale, the vendor could retain rights to zhaojia, that is, additional payment. These rights were not unlimited, and Marcel Mauss himself draws attention to Pierre Hoang’s observation in Jiangxu Province where deeds of tanqi were drawn up such that the previous owner could ask for one last payment when all rights to additional payment were exhausted.59 When the possibilities of additional payment were eventually exhausted, the original vendor still retained the position of previous owner (yuanyezhu), and as such could claim rights of prior purchase or, in certain regions, demand payment when the current owner sold the property to a third party.60 The retention of certain rights over alienated property functioned in a way that prevented social change from taking place too easily, but also ensured that, when change did occur, it occurred in a relatively peaceful manner. The institutions allowing such retention served to impede the transfer of land and territorial change that would arise through transactions of land and credit. As long as the original owners could secure funds, they could recover the initial state of affairs by exercising the rights they retained in the alienated property. More importantly, however, when circumstances were such that these parties could not recover their property, these institutions ensured the long-term nature of transactions, allowing the parties to acquaint themselves with each other, establish various relationships not limited to credit/debt, and proceed relatively smoothly to a new social condition where the newcomers and incumbents had a different relationship from before.61 A comparison with Tokugawa Japan that can be made for the above analysis of the Chinese property regime is that the Tokugawa Shogunate prohibited perpetual (absolute) sales of farmland for over 230 years.62 Such a law would have been easier to enforce in a smaller society like Japan (with the ruling samurai class constituting a far higher percentage of the population than the officials in China), a result being that a highly complicated system of “pawning” land developed, including a transaction where the original owner’s right of redemption did not expire with the passage of time.63 The Shogunate’s position on foreclosures oscillated, which is not surprising given the tension within society where perpetual alienation was prohibited but land continued to be used as security in credit/debt relations; the Meiji land reform drastically changed this system, paving the way for “modern” ownership rights.64 The traditional land regimes of Japan and China had certain similarities, in that there existed systematic impediments to foreclosures and total transfer of property, with parties retaining claims over alienated property in the course of long-term transactions. At the same time, certain contrasts can be drawn in terms of the role of the state. Complete alienation and foreclosures were explicitly prohibited and the prohibition enforced in Japan, while in China this was impossible. Moreover, control and presence of the state was felt much more closely in Japan than in China, with Japanese families primarily identifying themselves with their respective functions in the state apparatus.65 In the Chinese case, the process of local social formation through debt and land acquisition was closely connected with lineage building, where lineage groups constituted units of settlement and a dominant form of social organization. Lineage building, which went hand in hand with the formation of territorial entities such as villages and inter-lineage alliances, was also an important dimension of state building. Lineage building in southern China during the Ming and the Qing dynasties involved a proactive self-identification with a Confucian state culture, adaptation to the Chinese cultural repertoire, as well as internal coordination that allowed lineages to pay taxes as a group. This in turn was part of a much longer process through which different parts of China became integrated into the state. Chinese lineages regarded themselves as descending from high officials of past dynasties, and their loyalty was not to a particular dynasty, be it the Ming or the Qing, but to a longer continuity of dynasties on which the Mandate of Heaven was conferred at different periods of time.66 Thus their allegiance to the lineage, the continuity of their own male line, would not be influenced by the rise or fall of a particular dynasty. The notion of the state being what it was, the following opinion expressed by a Japanese former samurai in 1897, shortly after the Sino-Japanese War, is not surprising: The Chinese, in general, are not bothered by small matters. In Japan, we made a huge fuss about winning the war, but to the Chinese, a change of Emperor or a defeat in war gives them almost no excitement. . . . This is not surprising, as regardless of whether a dynasty falls and is taken over by another, or they are defeated in war and their land becomes the territory of another country, their society as a whole is preserved as before. Society has no relationship with the rise or fall of the state.67 Conclusion A. History of Interactions In this Article, I have discussed one way of understanding land transactions, lineage building, and state formation in the context of social structuring in Qing China. In doing so, I started from the actual processes of interaction between Western legal systems and Chinese practices, and I identified some of the problems and social processes that were highlighted in this interaction. I then used these as a starting point for investigation into the dynamics of a historical society in which problematic institutions (problematic in the sense that an insufficient understanding of them appeared to aggravate the problems that arose in the process of interaction), such as those of land transactions or lineage property holding, were formed, manipulated, and interacted with other institutions. I have presented this as an approach to comparative legal studies, where an important objective is the historical reconstruction of institutions that are objects of meaningful comparison, meaningful to the advancement of our understanding of law. This approach explicitly starts with a specific historical process rather than a theoretical program, be it a functionalist comparison between different “systems” that achieve overlapping ends or a larger question such as historical divergence informing the comparison. By anchoring the analysis in a historical process that involved both Western legal institutions and social institutions that were organized in accordance with a different rationality, this approach will perhaps ensure a relatively stable starting point that avoids making unwarranted assumptions about certain societies, regarding such points as whether there was a “family law” at all in traditional China, or whether a land “sale” was actually a matter of “property” in one of the traditional European senses. Moreover, to the extent that this approach uses the problems identified in the interaction as a starting point for further analysis, it is different from an approach that concentrates its attention on the interaction itself. While this approach will necessitate a departure from the relative safety of having a limited and well-defined object of study, it opens up a range of possibilities in understanding the legal and implications of the historical society it chooses to analyze.68 B. East–East Comparisons As this approach of starting with a historical interaction between two cultures aims to bring about meaningful comparisons for law, it is important to note how there are different levels of comparison. First, there is the implied comparison between aspects of the two societies that are in contact. This approach would allow for an analysis of how the process of interaction influenced both sides, and one could then identify problems such as the historical actors’ mutual misunderstanding or the changes undergone by the societies in question. This introduces the possibility of the next level of comparisons, not limited to the two societies interacting with each other. According to the choice of the objects of this second kind of comparison, different aspects of the societies analyzed would be emphasized. It is not always clear what is the fruitful comparison to make, but it seems clear that comparisons such as those between China and Japan bring insights different from comparisons with the West. Regarding traditional Chinese society, one type of comparison that has been made in a number of scholarly works is that with Western classical antiquity. When Shiga Shuzo contrasted the Japanese family and the Chinese family, his knowledge of Roman law led him to draw comparisons that placed the Japanese notion of paternal descent on one side, and the (to him) mutually similar Roman and Chinese notions, on the other. In particular, the notion of zong was explicitly compared with the notion of agnatio in Rome.69 Moreover, parallels between Ancient Greek society and Chinese society have also been drawn by the Hellenist Louis Gernet and the Sinologue Marcel Granet, both working in the tradition of Émile Durkheim and Marcel Mauss.70 The affinity between the Chinese long-term transactions and Maussian notions of échange and prestation totale go further than was implied by Mauss himself.71 C. A Wider Range of Comparison and How It Could Relate to Law Another classicist, Moses Finley, wrote, in referring to anthropology and the classics, that “[i]deally we should create a third discipline, the comparative study of literate, post-primitive . . . pre-industrial, historical societies.” As examples, he cites “pre-Maoist China, pre-colonial India, medieval Europe, pre-revolutionary Russia, medieval Islam.”72 This appears to open up the comparative program to a global scale. Finley’s dictum was made in attempting to identify objects of comparison that would aid in the understanding of classical antiquity. In that respect, global comparisons in comparative law would be most fruitful if they could contribute to a wider jurisprudence. Moreover, the introduction of this perspective of global comparative law can in turn enrich the understanding of historical societies and their interactions with each other. The property regime of the Qing, where long-term transactions necessarily bring about a situation where multiple claims exist in one plot of land, but where the state is unable to enforce any of these claims without the cooperation of the parties involved, necessitated a complex system regarding possession. In spite of the unenforceability of judgments, the prestige of the Qing state was supreme, and the government was far from impotent. This complexity of statehood and its ability to guarantee property rights comes close to the debate regarding the foundations of property. A full argument on this point, however, will have to be made in another context. Footnotes 1 Arnaldo Momigliano, The Classical Foundations of Modern Historiography 155 (1992). 2 See, e.g., James Gordley, Comparative Law and Legal History, inThe Oxford Handbook of Comparative Law 753 (Reinhard Zimmermann & Mathias Reimann eds., 2006). 3 See, e.g., Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law 9 (2013), on how “Western thought has classified and evaluated knowledges, civilizations, polities, persons, and literally everything else for at least two millennia” through these notions of the universal and the particular, and how Chinese law came to be seen as the “particular,” the “other.” Similarly, see how sixteenth-century French humanist jurists challenged the universal authority of Roman law in France based on the prevalence of the coutumes, just as Huguenot intellectuals challenged the universality of the Catholic Church. See Robert Launay, Montesquieu: The Specter of Despotism and the Origins of Comparative Law, inRethinking the Masters of Comparative Law 22, 23–24 (Annalise Riles ed., 2001). Moreover, note how the historical school of nineteenth-century German jurisprudence—while opposing the universality of natural law—would be divided into the Romanists and Germanists, the latter emphasizing Germanic customs while the former gave weight to the reception and practice of Roman law in the Holy Roman Empire: seeH.F. Jolowicz, Roman Foundations of Modern Law 22 (1957). 4 See, e.g., Montesquieu: The Spirit of Laws 126ff. (Anne M. Cohler, Basia C. Miller & Harold S. Stone trans. & eds., Cambridge Univ. Press 1999) (1748); Max Weber, Economy and Society: An Outline of Interpretive Sociology 818 (Guenther Roth & Claus Wittich trans. & eds., Univ. of California Press 1968) (1922). 5 John H. Wigmore, The Administration of Justice in Japan (pts. 1–3), 45 Am. L. Reg. & Rev. 437, 491, 628 (July–Oct. 1897); Jean Escarra, Le droit chinois (1936). 6 For a discussion of how Japanese and Chinese law have been treated similarly in this context, see Li-Wen Lin & Curtis J. Milhaupt, We Are the (National) Champions: Understanding the Mechanisms of State Capitalism in China, 65 Stan. L. Rev. 697 (2013). 7 Teemu Ruskola describes this process as one where “one particular idea of law has become a global standard for constituting free individual as well as democratic states. In the process, it has remade the world, and human beings’ relationship to it. In a sense, law has clearly won the day.” SeeRuskola, supra note 3, at 27. 8 Maruyama Masao & Katô Shûichi, Honyaku to Nihon no Kindai [Translation and Japanese Modernity] 119–30 (1998). 9 Other translations, either directly from the English or from the Chinese, were published in 1868, 1870, and 1882. 10 Watanabe Hiroshi, Nihon Seiji Shisôshi: 17–19 Seiki [A History of Japanese Political Thought from the 17th to the 19th Century] 343–62 (2010). Such idealization was also influenced by earlier representations of the West offered to the Chinese by Christian missionaries (the most influential of which was the Zhifang waiji, edited by the Jesuit Giulio Aleni and published in 1623), which deliberately used Confucian concepts and ideals to depict aspects of Western societies. 11 Maruyama & Katô, supra note 8, at 120; less directly, see Watanabe, supra note 10, at 360. Regarding the controversy on this point, see 1 Inada Masatsugu, Meiji Kenpô Seiritsushi (jô) [History of the Formation of the Meiji Constitution] (1960). 12 Ôkubo Yasuo & Takahashi Yoshiaki, Boissonade Minpôten no Hensan [Codification of the Boissonade Civil Code] (1999). 13 As an illustration, note the breadth of paradigms cited in Hozumi Nobushige, Hôtenron [Theory of Legal Codes] (Tokyo, Tetsugaku Shoin 1890), and Hozumi Nobushige, Hôsô Yawa [Nocturnal Tales of the Law] (1916) [hereinafter Hozumi, Hôsô Yawa]. 14 While the controversy over the civil code is the best known, similar debates on the commercial code and penal code were carried out over the same period, and formed a larger discussion on legal modernization. 15 Hozumi, Hôsô Yawa, supra note 13. 16 Id. 17 In Wanguo gongfa, the text credited with first introducing Western legal concepts to Japan, “custom” is translated completely differently, using the term changli (常例). In an official Japanese translation of this book, with a foreword written in 1876, “custom” is translated as shûkan (using the same exact characters as the Chinese xiguan), while retaining the transliterated English word in the text. 18 1 Tomii Masaaki, Minpô Genron dai 1 kan sôron jô [Basic Theory of Civil Law] (17th ed. 1922). 19 Jolowicz, supra note 3, at 21. 20 Id. The author draws on the example of Gratian putting all human law (as opposed to divine or natural law) under the heading of “mores.” 21 Launay, supra note 3, at 23–24. 22 Jolowicz, supra note 3, at 22. 23 Minji kanrei ruishû [Collection of Types of Civil Customary Practices] (Ikuta Kuwashi et al. eds., Tokyo, Shihôshô [Ministry of Justice] 1877); Zenkoku Minji kanrei ruishû [Nationwide Collection of Types of Civil Customary Practices] (Ikuta Kuwashi ed., Tokyo, Shihôshô 1880). The survey itself is known to have been recommended by the American advisor George W. Hill, who considered “modern laws” to be ill suited to the Japanese situation; he advised that the Japanese should construct a legal system based on their own traditions and customs, drawing parallels from Justinian’s enterprise of rewriting the Roman law. It has been pointed out that there was some confusion on the part of the Japanese in the understanding of this recommendation, and that this confusion led to the collection of local customs rather than defining the “customs of the realm” that would develop into a common law (the latter being Hill’s suggestion). Minji kanrei ruishû [Collection of Types of Civil Customary Practices] 17 (Tezuka Yutaka & Rikô Mitsuo eds., 1969) [hereinafter Minji kanrei ruishû, 1969]. 24 Minji kanrei ruishû, 1969, supra note 23; Kawaguchi Yoshihiko, Nihon Kindai Hôseishi [Modern Japanese Legal History] (2d ed. 2015). 25 Tomii, supra note 18; Uno Fumie, Meiji minpô kisô iin no “ie” to koshuken rikai: Tomii to Ume no “shinzoku-hen” no giron kara [An Analysis of the Concepts of “iye” and the Right of House-Head (Koshu-ken) in the Process of Japanese Civil Law Codification], 74 Kyûshû Daigaku Hôsei Kenkyû 57 (2007). Moreover, although changes were made in strengthening the power of the household head, it was argued that the incorporation of such elements of the traditional family was necessary for a smoother transition to a new family system. 26 Minpō [Minpō] [Civ. C.] 1898, arts. 263, 294. 27 Nishi Hideaki, Taiwan Shihô no Seiritsu Katei [The Formation of the Taiwan Shihô] 30–32 (2009). 28 Shimada Masao, Shinmatsu ni okeru Kindaiteki Hôten no Hensan [Compilation of Modern Codes During the Late Ch’ing Period] (1980); Yu Chen (陈煜), Qingmo Xinzheng zhongde Xiuding Falüguan: Zhongguo Falü Jindaihua de Yiduan Wangshi (清末新政中的修订法律馆:中国法律近代化的一段往事) [The Law Revision Commission in Late Qing Political Reform: A Set of Events in Chinese Legal Modernization] (2009); Nishi Hideaki, Kindai Chûka Minkoku Hôsei no Kôchiku: Shûkan chôsa, Hôten Hensan to Chûgoku Hôgaku [The Construction of a Modern Legal System in the Republic of China: Custom Surveys, Codification, and Chinese Jurisprudence] (2018). 29 58 Qing Shilü (清实录) [Veritable Records of the Qing Dynasty] 429–31 (Beijing, Zhonghua shuju ed. 1987); 2 Zhang Zhidong Quanji, Zouyi (张之洞全集 2 奏议) [Collected Works of Zhang Zhidong, Memorials] 1449–50 (Yuan Shuyi ed., 1998). 30 Mitsukuri Rinshô kun Den [Biography of Mitsukuri Rinshô] 100–01 (Ôtsuki Fumihiko ed., 1907). 31 Jérôme Bourgon, Uncivil Dialogue: Law and Custom Did Not Merge into Civil Law Under the Qing, 23 Late Imperial China 50 (2002). 32 Shiga Shûzô, Shindai Chûgoku no Hô to Saiban [Law and Justice in Qing China] 357 (1984). The Chinese and Japanese terms use the same two (Chinese) characters in reverse order, and are often used interchangeably. 33 Nakamura Tetsuo, Shinmatsu no Chihô Shûkan Chôsa no Hôkokusho ni tsuite [On the Provincial Custom Survey Reports of the Late Qing], inNunome Chôfû Hakushi Koki kinen ronshû: Higashi Ajia no Hô to Shakai [Law and Society in East Asia: Festschrift for Nunome Chôfû] (Nunome Chôfû Hakushi Kinen Ronshû Kankôkai Henshû Iinkai [The Editorial Comm. of the Festschrift Publ’n Soc’y for Dr. Nunome Chôfû] ed., 1990). 34 Jérôme Bourgon, Rights, Freedoms, and Customs in the Making of Chinese Civil Law, 1900–1936, inRealms of Freedom in Modern China 84 (William C. Kirby ed., 2004). For a more skeptical view, see Nishi, supra note 27. 35 Nishi, supra note 28, at 52–60. 36 Judgment 2 of Feb. 1, 1913 & Judgment 64 of July 5, 1913, reproduced in Daliyuan Minshi Panli Jicun (1912–1928) Zongzebian (大理院民事判例輯存 (1912–1928) 總則編) [A Compilation of the Civil Precedents of the Supreme Court in the Early Republic of China (1912–1918): The General Principles] 1, 7 (Huang Yuan-sheng (黄源盛) ed., 2012). 37 Nishi, supra note 28, at 60–61 (showing the parallels between the wording of the judgment and texts in Okada Asatarô, Hôgaku Tsûron [Outline of Legal Studies] (1908), which contained his lectures in China, and Hozumi Nobushige, Hôritsu Shinkaron [Evolutionary Theory of Law] (1924)). 38 Lee Youngmee, Kankoku Shihô Seido to Ume Kenjirô [The Korean Judicial System and Ume Kenjirô] (2005). 39 Nishi, supra note 28, at 197. 40 Nishi, supra note 27, also mentions surveys that were conducted in the South Pacific and Southeast Asia during World War II. 41 Chûgoku Nôson Kankô Chôsa [Investigation of Rural Chinese Customs] (Comm. for the Publ’n of the Rural Customs & Practices of China ed., 1952–1958). 42 Note, in particular, the role of Suehiro Izutarô, whose interest in “living law” formed both a dominant current in civil law scholarship and pioneered the field of legal sociology in Japan. In particular, it is worth noting here that scholars of the 1930s and 1940s were well aware of the dangers of distorting traditional Chinese practices by trying to understand them through preconceived (legal) concepts. SeeFukushima Masao, Chûgoku Nôson Kankô Chôsa to Hôshakaigaku: Tokuni Suehiro Hakushi no Hôshakaigaku Riron wo Chûshin to shite [The Chûgoku Nôson Kankô Chôsa Surveys and the Sociology of Law: Centering on the Legal Sociological Theory of Suehiro] (1957). 43 Just to take up two examples, the extensive use of the surveys in Prasenjit Duara, Culture, Power and the State: Rural North China, 1900–1942 (1988), was influential in the subsequent development of the scholarship’s understanding of local social formation through lineage and village, and the relationship between these local processes and the functioning of the Chinese state. More recently, Taisu Zhang makes use of the surveys in conjunction with an analysis of Qing archives, looking into how kinship considerations affected land transactions. SeeTaisu Zhang, The Laws and Economics of Confucianism: Kinship and Property in Preindustrial China and England (2017). 44 An early treatment was Shimizu Morimitsu, Chûgoku zokusan seido kô [A Consideration of Lineage Property in China] (1949). Maurice Freedman introduced it widely to the Western readership by interpreting it in the terminology of structural-functionalist social anthropology. SeeMaurice Freedman, Lineage Organization in Southeastern China (1958). 45 Matsubara Kentarô, Sôzoku to Zokusan wo meguru Dentô Chûgoku Shakai: Honkon chiiki no sho-jirei ni rikkyaku shita kôzô bunseki [Lineage Property Holding and Social Structures in Traditional China: An Analysis Based on Cases from the Hong Kong Region], 116 Hogaku Kyokai Zassi 1098 (1999). 46 Shiga Shuzô, Chûgoku Kazokuhô no Genri [Principles of Chinese Family Law] (1967). 47 See, e.g., the formulation in Ip Cheong-kwok v. Ip Siu-bun & Others, [1988] 2 H.K.L.R. 247, 253 (H.C.). For an analysis of the legal argumentation in the colonial courts, see Kentaro Matsubara (Songyuan Jiantailang, 松原健太郎), Shi xintuo haishi faren? Zhongguo zongzu caichan de guanzhi wenti (是信托还是法人?中国宗族财产的管治问题) [Trust or Corporation? Problems of Governance in the Management of Chinese Lineage Property], 7 Lishi Renleixue Xuekan 2 (2009). 48 On this formulation, dubbed the Jisi Gongye, see Wang Tay-sheng, Legal Reform in Taiwan Under Japanese Colonial Rule, 1895–1945 (2000). 49 Chinese Law and Custom in Hong Kong: Report of a Committee Appointed by the Governor in October 1948 (George Strickland, et al. eds., 1953); Rinji Taiwan Kyûkan Chôsakai Dai Ichibu Hôkoku: Taiwan Shihô Furoku Sankôsho [Private Law of Taiwan, with Appended Reference Volumes] (Temporary Comm. for the Investigation of Taiwanese Old Customs ed., 1901–1911). 50 Ruskola, supra note 3, at 27. 51 SeeTerada Hiroaki, Chûgoku Hôseishi [China’s Traditional Legal Order] (2018); Contract and Property in Early Modern China (Madeleine Zelin, Jonathan K. Ocko & Robert Gardella eds., 2004); Zhang, supra note 43; Patrick Hase, Custom, Land and Livelihood in Rural South China: The Traditional Land Law of Hong Kong’s New Territories, 1750–1950 (2013); Kentaro Matsubara, Traditional Land Rights in Hong Kong’s New Territories, inTreaty-Port Economy in Modern China: Empirical Studies of Institutional Change and Economic Performance 147 (Billy K.L. So & Ramon H. Myers eds., 2011) [hereinafter Matsubara, Traditional Land Rights]; Kentaro Matsubara, Credit Institutions and the Land Market in the New Territories of Hong Kong: Local Social Structuring and Colonisation, inColonial Administration and Land Reform in East Asia 103 (Sui-wai Cheung ed., 2017). 52 Kentaro Matsubara, Land Registration and Local Society in Qing China: Taxation and Property Rights in Mid-Nineteenth Century Guangdong, 8 Int’l J. Asian Stud. 163 (2011). 53 Shiga, supra note 32, at 149–87. 54 Matsubara, supra note 52. 55 David Faure, Emperor and Ancestor: Lineage and State in South China (2007). 56 For background, see David Faure, The Structure of Chinese Rural Society: Lineage and Village in the Eastern New Territories, Hong Kong (1986) (discussing the collection of material through the Oral History Project); Helen Siu, Key Issues in Historical Anthropology: A View from “South China,” 13 Cross-Currents E. Asian Hist. & Culture Rev. 174 (2014). 57 Matsubara Kentaro, Keiyaku, Hô, Kanshû: Dentô Chûgoku ni okeru Tochi Torihiki no Ichi-sokumen [Contract, Law, and Custom: An Aspect of Land Transactions in Traditional China], inShihai no Chiikishi [The Regional History of Dominance] 44 (Hamashita Takeshi & Kawakita Minoru eds., 2000). 58 Id. 59 Marcel Mauss, Essai sur le don: Forme et raison de l’échange dans les sociétés archaiques, L’Année Sociologique Nouvelle Série Tome I (1923–1924), at 30, 158–59 (1925) Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies 63–64 (W.D. Halls trans., 1990); Pierre Hoang, Notions techniques sur la propriété en Chine, avec un choix d’actes et de documents officiels 10, 109, 133 (Shanghai, Imprimerie de la Mission Catholique ed. 1897). 60 Matsubara, Traditional Land Rights, supra note 51. 61 Id. 62 Generically known as the Denpata Eidaibaibai Kinshirei, indicating three separate regulations issued in 1643, explicitly repealed by the Meiji government in 1872. 63 This form of pawning was called Ariawase shicchi. See Kentaro Matsubara, The Meiji Land Reform and the Formation of Modern Land Rights in Japan, inColonial Administration and Land Reform in East Asia,supra note 51, at 37, 38. 64 Id. at 38–40. 65 On this identification with the state, and the notion of kashoku kokka (“nation of family businesses”), see Watanabe,supra note 10. 66 Faure, supra note 56. 67 Katsu Kaishû Hikawa Seiwa [Pure Discourse in Hikawa] (1897), cited inSannosuke Matsumoto, Kindai Nihon no Chûgoku Ninshiki [How the Japanese Recognized China in the Modern World] 120, 120–21 (2011) (translated by author). 68 For comparison, see Taisu Zhang, Beyond Methodological Eurocentricism: Comparing the Chinese and European Legal Traditions, 56 Am. J. Legal Hist. 195 (2016). 69 See Shiga, supra note 46, at 7, for an explicit statement of the comparative program; see also id. at 19–21, for the initial treatment of zong and agnatio. Parallels are also drawn, for example, between the range of meaning in the Chinese term jia and that of the Latin familia, or between individual property (as opposed to household property) in China and the Roman notion of peculium. Id. at 508. 70 For a critical assessment, see S.C. Humphreys, Anthropology and the Greeks 86–87, 286 (1978). 71 Mauss, supra note 59; Matsubara, Traditional Land Rights, supra note 51. 72 Moses I. Finley, Anthropology and the Classics, inThe Use and Abuse of History 102, 119 (1975). © The Author(s) [2019]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, pleasee-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)

Journal

American Journal of Comparative LawOxford University Press

Published: Feb 3, 2019

There are no references for this article.