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Sex, Law, and Society in Late Imperial China

March 22, 2010

Matthew H. Sommer. Sex, Law, and Society in Late Imperial China. Stanford, Calif.: Stanford University Press, 2000.

Sigrid Schmalzer (2003)

In this new addition to scholarship on law in late imperial Chinese society, Matthew Sommer explicitly rejects standards of “progress” applied by scholars who use the history of law in the west as a model. Instead, he seeks to use legal codes and case records to understand how officials and commoners understood sexual norms and criminal transgressions of those norms. He argues that Qing-dynasty modifications to laws regulating sexual behavior reflected not the “homophobia” of Qing officials, nor an intention to emancipate sex workers, nor even an attempt to repress women’s sexual behavior. Rather, what stands out in relevant legal documents is a profound shift from a status-based to a gender-based standard of morality.

For Sommer, the root cause of this shift is to be found in the enormous social and demographic changes of the late-imperial period. On one hand, commercialization, together with state efforts to undermine status claims of the elites, increasingly blurred the line between aristocrat and commoner. On the other, female infanticide combined with dramatic increases in population to create a larger-than-ever number of “rogue males” who presented a threat to family life and social order. Together, these two factors provided compelling grounds for the Qing state to seek “to extend the [previously aristocratic] standard of familial and sexual morality to all [classes]” (p. 65).

The book covers four specific topics within the general subject of sex and the law: rape, male homosexual intercourse, chaste widows, and prostitution. While only the cases of rape and prostitution appear to relate directly to his overarching thesis, each area presents evidence for interesting secondary conclusions. In chapter 3, Sommer argues that the eighteenth-century emphasis on women’s consent or resistance to rape reflected the state’s interest in “enlist[ing] female agency and assertiveness in the cause of defending an embattled, normative family order” (p. 112). As he convincingly demonstrates in chapter 5, however, the law provided a strategic resource for common people (including women), and not just for the state. Widows and their in-laws sought to use statutes governing the sexual behavior and property rights of widows to their own advantage.

Chapter 4 examines the criminalization of homosexual anal intercourse in the Ming and Qing dynasties. Sommer makes a number of important points. First, he rightly challenges scholars like Bret Hinsch who assume the existence in imperial China of homosexuality as a social identity commensurable with that familiar to us in the twentieth century. Second, he shows that the practice – and not just the representation – of penetration was hierarchically ordered by age (with few exceptions, older men penetrated younger men), demonstrating that legal codes matched a common understanding that to be an adult male meant to penetrate. Finally, Sommer concludes that the penetration of males represented a “denegration” of masculinity, and thus a threat to the Confucian family similar to that posed by heterosexual rape and adultery.

In chapters 6 and 7, Sommer challenges previous scholarship on prostitution law before and after the bans imposed by the 1723 Yongzheng reforms. Sommer eschews a judgment as to the emancipatory effects of prohibition in favor of an analysis of how the reforms sought to regulate sexuality. The significance of the change, he argues, lies once again in a leveling of status distinctions. No longer would prostitution be acceptable for debased music households and unacceptable for others; rather, women from all social classes were now held to the same high moral standard.

This book is one in a series, “Law, Society, and Culture in China,” made possible by archives of legal statutes and case records newly available to scholars. For the editors and others, these resources are valued for the opportunity they provide to integrate social and cultural history, branches of the field that have for too long “tended to go their separate ways” (no page number). The next task will be for scholars to integrate such legal documents more extensively with other types of sources that provide insights into social and cultural history. For example, studies like this one that deal with ideas about the body and morality will benefit greatly from closer attention to medical and religious writings.

© Copyright 2003. All rights reserved.

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