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Historians at the Court: How Cultural Expertise in Qing Law Contributes to the Invention of Hong Kong “Chinese Customary Law”

Published online by Cambridge University Press:  13 January 2020

Jérôme Bourgon
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Abstract

This paper relies on the narrative of a renowned historian of Qing law from China mainland who has been called by Hong Kong High Court in 2007, to witness as an expert in “Chinese customary law.” At the opening of the trial, he recognized one well-known and estimated colleague from Taiwan in the expert engaged by the other party. During one week, these two legal historians called up a vast array of knowledge in Chinese history, culture, and law, to ensure the triumph of their party. The contest opposed the representatives of two branches of a same lineage who claimed their right to manage the lineage common wealth. As both were collaterals with dubious link with the original lineage, experts engaged in sophisticated arguments to make their cause prevail. Successively were adduced lineage registers the tabooing of fathers and emperors' personal name in the Chinese tradition, the degree of kinships as represented by “mourning charts” included in the Qing penal code. Even though it was “privately settled” before any judicial decision, this case raises questions on the very nature of “Chinese customary law”, and the role of “cultural expertise” at Common law in a Chinese environment.

Type
Forum: Cultural Expertise
Information
Law and History Review , Volume 38 , Issue 1 , February 2020 , pp. 85 - 98
Copyright
Copyright © the American Society for Legal History, Inc. 2020

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Footnotes

This paper was first presented at the workshop Cultural expertise in Ancient and Modern History convened within the framework of the project entitled “Cultural Expertise in Europe: What is it useful for?” (EURO-EXPERT) funded by the European Research Council (ERC) under H2020-EU.1.1. programme (ERC grant agreement no. 681814), Principal Investigator: Livia Holden.

References

1. This historical introduction relies mainly on Su Yigong's written testimony, the outlines of which can be found in his article: Su, Yigong, “The Application of Chinese Law and Custom in Hong Kong,” Hong Kong Law Journal 29 (1999): 267Google Scholar.

2. Norton-Kyshe, James William, The History of the Laws and Courts of Hong Kong, vol. 1 (Hong Kong: Vetch and Lee Ltd, 1971), 4–6Google Scholar.

3. This quote, as well as various subsequent quotes, appear in the Hong Kong Law Report (hereafter H.K.L.R), in the 1962 edition for this quote. H.K.L.R, which has now become H.K.L.R.D (Report & Digest), is published by the authorized law reporting service in Hong Kong endorsed by the judiciary, and provides for more than 100 years of case law and other regulations. For the confirmation of customary law enforcement, see Ho Tsz Tsun, v. Ho Au Shi and Others H.K.L.R (1915), vol. 10, p. 69; and The Estate of Chak Chiu Huang and Others, H.K.L.R (1925), vol. 20, 1.

4. Lui Yuk-ping v Chow To, H.K.L.R. (1962), 515.

5. Lui Yuk-ping v. Chow To, H.K.L.R. (1962), 531–32.

6. Here it would be convenient to recall that a Chinese name is composed of a family name, placed in first position before the personal name, the former being transmitted from father to children, the latter being given to each child, who generally shared a common character in order to show that they belong to a same generation. This strict standardization aims in particular to avoid all confusion among generations, which would be a breach in the familial ranking, as well as in the succession order. See Alleton, Viviane, Les Chinois et la passion des noms (Paris: Aubier, 1993)Google Scholar.

7. The Shihui juli 史諱舉例 (raising examples of taboo [names] in [Chinese] history) is a collection of eighty examples of names of people, particularly emperors, places, and administrative functions, the writing of which had been prohibited throughout history. It was authored by Chen Yuan 陳垣 (1880–1971) a historian and polygraph who had been honored as “cultural treasure” by Mao Zedong, before he was killed during the Cultural Revolution.

8. Founded in 386 by a chief of the Togbatch tribes (pronounced Tuoba in Chinese), the dynasty reunified the northern part of the Chinese empire in 439 and took the Han name of Wei. It split into several rival kingdoms after 535.

9. See The Tang Code, trans. and with an introduction by Johnson, Wallace (Princeton, NJ: Princeton University Press, 1997) vol. IIGoogle Scholar, “specific articles,” 91 for the quoted art. 121; and vol. 1, “General Principles,” 130 for article 20.

10. The “Taboo of the Names” Huiming 諱名 was written by Han Yu mainly to help his protégé Li He. This is but one among many treatises that have been published on this thorny issue all throughout Chinese history; compare Adamek, Piotr, A Good Son is Sad if He Hears the Name of His Father. The Tabooing of Names in China as a Way to Implement Social Values, Monumenta Serica Monograph Series LXVI (London: Routledge, 2012), 177Google Scholar, on Li He's case and Han Yu's arguments in defense.

11. This passage is in the second chapter of the Liji 禮記, headed “Tang Gong,” after the name of Confucius's interlocutor in this chapter; the translation is my own, after consultation of Couvreur, Séraphin, Li ki ou mémoires sur les bienséances et les cérémonies: avec une double traduction en français et en latin (Ho kien fou: Imprimerie de la mission catholique, 1913), tome 1, 70Google Scholar.

12. Case headed “Zhengduo sichan zhi miaopi (爭奪嗣產之妙批),” included in Yu Chenglong pandu jinghua 與成龍判讀精華 Anthology of cases adjudicated by Yu Chenglong (1617–1684), who was celebrated by emperor Kangxi as “the magistrate with greatest integrity of the whole empire.”