A world made simple: Law and property in the Ottoman and Qing Empires

Journal of Early Modern History

Volumn 5, Issue 4, 2001, Pages 331-352

  Macauley, Melissa ^a  

^a NORTHWESTERN UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 63849206576     PISSN: 13853783     EISSN: 15700658     Source Type: Journal    
DOI: 10.1163/157006501X00140     Document Type: Review

References (79)

1. Haim Gerber argues that Ottoman law fostered autonomous guilds and a Albany civil society that served as a precedent for modern Turkish democracy. See State, Society, and Law in Islam: Ottoman Law in Comparative Perspective (Albany, 1994), 113-26
2. The literature on "civil society" in China is extensive. See for example, the symposium volume "Public Sphere/Civil Society in China?" Modern China 19/2 (1993)
3. On the power of legal documentation, see Gerber, State, 79-112
4. Brinkley Messick, Calligraphic State: Textual Domination and History in a Muslim Society (Berkeley, 1993)
5. and Melissa Macauley, Social Power and Legal Culture: Litigation Masters in Late Imperial China (Stanford, 1998), 3 and passim
6. On litigation as a challenge to male authority, see Macauley, Social Power, 146-66 and 318-21
7. and Yvonne Seng, "Standing at the Gates of Justice: Women in the Law Sixteenth-Century Uskudar, Istanbul Courts of Early Sixteenth-Century Uskudar, Istanbul," in Contested States, ed. Mindie Lazarus-Black and Susan Hirsch (New York, 1994), 252-81
8. Clifford Geertz, "Local Knowledge: Fact and Law in Comparative Perspective," in Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (New York, 1982), 182-84
9. Gerald Strauss, Law, Resistance and the State: The Opposition to Roman Germany Law in Reformation Germany (Princeton, 1986), 289
10. James Scott, Seeing Like a State. How Certain Schemes to Improve the Have Failed Human Condition Have Failed (New Haven, 1998). I will elaborate on this notion of state simplifications below
11. The following analysis of property in China is adapted in part from China, with permission of the publishers material in Macauley, Social Power and Legal Culture: Litigation Masters in Late Imperial China, with permission of the publishers, Stanford University Press
12. Yang Guozhen, Ming Qing tudi qiyue wenshu yanjiu [A Study of Land conflicts over these contracts were taken to court, the Qing state relied on the literal language of the contract Contracts Under the Ming and Qing] (Beijing, 1988), 275. When conflicts over these contracts were taken to court, the Qing state relied on the literal language of the contract
13. Yang, Ming Qing tudi, 279
14. Niida Noboru, Tochihō torikihō [Laws of Land and History] (Tokyo,. Transactions], vol. 2 of Chūgoku hōseishi kenkyū [Studies in Chinese Legal History] (Tokyo, 1960), 377
15. The literature on living sales is extensive. For pioneering works in European languagesaris European languages, see Pierre Hoang, Notions techniques sur la propriété en Chine (Paris, 1921)
16. and Eduard Kroker, "The Concept of Property in Chinese Customary Law," Transactions of the Asiatic Society of Japan, 3rd ser., 7 (1959): 123-46
17. On multiple landownership, see Evelyn Rawski, Agricultural Change and the Peasant Economy of South China (Cambridge, 1972)
18. and Peter Perdue, Exhausting the Earth (Cambridge, 1987)
19. Zhupi zouzhe.falü.qita [Imperially-endorsed palace memorials, law category, miscellaneous sub-category], QL 6.11.10. category, miscellaneous sub-category], QL 6.11.10
20. Dai Yanhui, "Qingdai Dan-Xin dang'an zhengli xushuo," Taibei wenwu 2/3 (1953): 6-7
21. Niida, Tochihō torikihō, 2:213-14 and 462-63
22. Yeh-chien Wang, Land Taxation in Imperial China (Cambridge, 1973), 79-83 and 98-101
23. In 1760, for example, the provincial governor attempted to impose a state-mandated uniformity in the language, form, and validation of contracts. See Fujian shengli [Provincial Regulations of Fujian] (Taibei, 1863-64), 3:442-43
24. Fujian shengli, 3:445-46
25. Fujian shengli, 3:446
26. Duli cunyi chong kan ben [Reissued Editions of Doubts While Perusing the Substatutes] (Taibei, 1970), 95:07. Substatutes] (Taibei, 1970), 95:07
27. Duli cunyi, 95:07
28. Board of Revenue regulation cited in Zheng Qin, Qingdai sifa shenpan System of the Qing, Changsha zhidu yanjiu [A Study of the Trial System of the Qing] (Changsha, 1988), 207-208
29. and Duli cunyi, 95:07
30. Xue Yunsheng in Duli cunyi, 95:07
31. Scott, Seeing Like a State, 11-52. European state-building was obviously simplification and standardization. And, of course, it was not merely the state itself that determined the individuated property regime of liberal, bourgeois democracies more complex than the process of simplification and standardization. And, of course, it was not merely the state itself that determined the individuated property regime of liberal, bourgeois democracies
32. Pierre-Étienne Will and R. Bin Wong, Nourish the People (Ann Arbor, 1991)
33. Sara Berry, No Condition is Permanent: The Social Dynamics of Agrarian Sub-Saharan Africa Change in Sub-Saharan Africa (Madison, 1993), 13
34. Elizabeth Colson, "The Impact of the Colonial Period on the Definition of Land Rights," in Profiles of Change, ed. Victor Turner (Cambridge, 1971), 193-215
35. Sally Falk Moore, Social Facts and Fabrications (Cambridge, 1986), 156 and 317
36. Berry, No Condition is Permanent, 25, 120, 180
37. On state-building see Charles Tilly, Coercion, Capital, and European States (Oxford, 1990)
38. and Tilly, "Reflections on the History of European element of state-building so central to Tilly's formulations and to the imperial enterprise of both the Qing and the Ottomans State-Making," in The Formation of Nation States in Western Europe, ed. Tilly (Princeton, 1975), 3-83. In this paper I do not address the war-making element of state-building so central to Tilly's formulations (and to the imperial enterprise of both the Qing and the Ottomans)
39. Suraiya Faroqhi, "Crisis and Change, 1590-1699," in An Economic and Social History of the Ottoman Empire, ed. S. Faroqhi et al., vol. 2 (Cambridge, 1994), 537-38
40. The Economic History of the Middle East, ed. Charles Issawi (Chicago 1966), 71-72
41. Gershon Shafir, Land, Labor, and the Origins of the Israeli-Palestinian Conflict (Cambridge, 1989), 31
42. Faroqhi, "Crisis and Change," 565-68
43. Roger Owen, The Middle East in the World Economy (London, 1981), 12-15
44. Roderic Davison, Reform in the Ottoman Empire (Princeton, 1963), 257
45. Owen, Middle East; Huri Islamoglu-Inan, "Introduction: Oriental World System Perspective Despotism in World System Perspective," in The Ottoman Empire and the World Economy, ed. H. Islamoglu-Inan, (Cambridge, 1987), 1-24
46. Donald Quataert, "The Age of Reforms, 1812-1914," in Economic and Social History, ed. Faroqhi, et al., 761-65. The Ottoman textile industries nonetheless survived
47. Quataert, "Age of Reforms," 762
48. Quataert, "Age of Reforms," 857-58
49. Davison, Reform in the Ottoman Empire, 99
50. Shafir, Land, Labor, and the Origins of the Israeli-Palestine Conflict 33
51. Peter Sluglett and Marion Farouk Sluglett, "The Application of the 1858 Land Code in Greater Syria," in Land Tenure and Social Transformation in the Middle East, ed. Tarif Khaladi (Beirut, 1984), 413
52. Corps de droit ottoman, tr. George Young (Oxford, 1905-1906), Art. 1
53. also Doreen Warriner, "The Real Meaning of the Ottoman Land Code," in Issawi, Economic History, 73
54. Warriner, "Real Meaning," 73
55. Davison also critiques the law for not addressing other types of tenure Reform in the Ottoman Empire, 99. See Reform in the Ottoman Empire, 99
56. Sluglett and Farouk-Sluglett, "Application," 413
57. Corps de droit ottoman, Art. 36
58. See also Articles 17 and 31 (stating that no one could build a new state land without permission of the officials), and 37. building on state land without permission of the officials), and 37
59. also quoted in Warriner, "Real Meaning," 73-74
60. Owen, Middle East, 258
61. Shafir, Land, Labor, and the Origins of the Israeli-Palestinian Conflict 34-35
62. Warriner, "Real Meaning," 76
63. Bernard Lewis, The Emergence of Modern Turkey (London, 1961), 117 or impose higher taxes Peasants feared a government ploy to identify military recruits or impose higher taxes
64. Quataert, "Age of Reforms," 859, 885n
65. For an example of European resistance to the legal regime of early modern state-builders, state-builders, see Strauss, Law, Resistance, and the State
66. Lewis, Emergence of Modern Turkey, 452. The Land Distribution Law of 1945 lands as well as huge estates. This seems to have been part of the longer process of creating a small, freeholding property regime. redistributed state and foundation lands as well as huge estates. This seems to have been part of the longer process of creating a small, freeholding property regime
67. Niyazi Berkes, The Development of Secularism in Turkey (Montreal, 1964)
68. In 1933, 37.6% of Chinese university students were enrolled in university-level faculties of law (statistics culled from Jean Escarra, Le Droit chinois (Beijing, 1936), 372-83)
69. F.T. Cheng, "Editorial," in China Law Review 4 (July 1930) 117-20
70. Zhou Yeping, Xingfa yanjiu [A Study of Criminal Law] (Taipei, 1960), 25
71. Vakur Versan, "The Kemalist Reform of Turkish Law and Its Impact," in Atatürk and the Modernization of Turkey, ed. Jacob Landau (Boulder, 1984), 249. Japanese codes were also influential in China to 1928
72. A.F.P. Hulsewé and M.H. van der Valk, "Nécrologie Jean Escarra," in T'oung Pao 44 (1956): 304-310
73. John Merryman, "The Ideology of the French Civil Code," in The writings seemed to reflect the ideas of the sociological school of jurisprudence described below Civil Law Tradition: Europe, Latin America, and East Asia, ed. Merryman et al. (Charlottesville, 1994), 450. I should add that Escarra's own writings seemed to reflect the ideas of the sociological school of jurisprudence described below
74. The sociological school itself evolved from earlier Historical Macauley, Euro-American Legal Theory and Chinese Reform, forthcoming. ("found") and Analytical ("made") schools of jurisprudence. For a general discussion of the sociological school, see Roscoe Pound, Jurisprudence, 5 vols. (St. Paul, 1959). For the sociological school in China, see Melissa Macauley, "Euro-American Legal Theory and Chinese Reform," forthcoming
75. For Turkey, see Shaw and Shaw, History, 385-86
76. and Esin Örücü, "Turkey, Change With Pressure," in Studies in Legal Systems: Mixed and Mixing, ed. Örücü, et al. (London, 1996), 88-105
77. On changes in Republican law regarding marriage, see The Civil Code of the Republic of China, tr. Ching-lin Hsia (Shanghai, 1931), Articles 972-1058
78. On the Marriage Law of the People's Republic, see Ono Kazuko, Chinese Women in a Century of Revolution (Stanford, 1989), 176-86
79. Örücü, "Turkey," 94