Judicial Construction of 'T'sip' in East Asia -- A Comparative Perspective

Abstract

This article tries to answer the following questions: Why did the courts in some East Asian jurisdictions give different interpretations of t’sip (concubines) in Chinese customary law? How did the courts in these jurisdictions construct the Chinese family order through their judicial interpretations of Chinese customary law? The article argues that because of the practical need to resolve Chinese family disputes, the courts in different East Asian jurisdictions had to adopt and adapt the Great Qing Code (Da Qing Lu Li) in their judicial interpretations and, out of respect for Chinese customs and practices, to give effect to interpretations of t’sip when local circumstances required the courts to adjudicate. Despite the transplantation of the Great Qing Code, local adaptations of traditional customs and practices in the Chinese communities in different East Asian jurisdictions led the development of Chinese customary laws and practices to deviate from those in Mainland China. On the one hand, the courts in different jurisdictions had to apply the Great Qing Code as the positive law in legal proceedings as if it were the law in their own jurisdictions. On the other hand, the courts in jurisdictions other than Mainland China had to apply Chinese customary law even as these customs and practices were gradually evolving as they adapted to local circumstances in different Chinese communities. This study is important because it attempts to investigate the judicial interpretations in different jurisdictions to see how social changes in the different territories might have led to the different interpretations of t’sip in the Chinese family order. It also shows how the modernization of Chinese law in Mainland China, such as the abolition of concubinage in the Civil Code of the Republic of China in 1931 and the legal recognition of registered monogamous marriage by the Marriage Law of the People’s Republic of China in 1951, might have affected the judicial interpretation of t’sip in other jurisdictions in East Asia.