Law in Opposition to Qing

In this section, I use Putianese leftover women's legal consciousness as an example to show how people engage with state laws that are considered contrary to qing. My findings show that, when people believe state law is in opposition to qing, they hold negative attitudes towards state law and choose to avoid, resist, and dismiss state law, and they invoke qing to mitigate the consequences when the law has already caused undesirable results.

4.1.1 Avoidance of State Law When It Conflicts with Qing

While some Putianese women mention that they felt anguished both physic­ally and emotionally when their parents forced them to break up with boy­friends who refused to practise lianggu, they never think of deploying state law to protect their rights, nor are they eager to advocate for a legal reform to ensure Putianese women's freedom of marriage. None of my interviewees chose to exercise their legal right to marry in order to stop their parents from forcing them to leave their boyfriends. Likewise, nobody sued their parents for interfering in their marriage, nor do they consider their parents' actions to be domestic abuse or violence. Quite the opposite: the women I interviewed repeatedly invoked the concepts of love, duty, reciprocity, traditional virtue, family harmony, and filial piety. All these concepts are considered significant components of qing with respect to family relations between daughters and parents. Putianese women's emphasis on these concepts reflects the fact that they prioritize the relationship with their parents over freedom of marriage. [...]

This is especially the case in a city with influential patriarchal culture, such as Putian. If a woman marries into a Putianese man's family without choosing lianggu, she is not supposed to spend money on her own parents. Otherwise, her parents-in-law and husband will be very upset.

As supporting one's parents in old age or being a filial daughter is con­sidered a requirement of qing, my interviewees believe that the custom of lianggu is what they should respect and follow. They perceive a conflict between a woman's right to choose her own marital partners and the need to protect the interests of her parents. Although the marriage law emphasizes freedom to choose one's partner and prohibits coercion by a third party, my interviewees hold that it is undesirable to invoke the law against their parents to assert this right. It is true that Chinese society still considers being leftover in the marriage market a mark of shame for both the woman and her family, but leftover women's insistence on lianggu shows that being leftover is more acceptable to them than acting against qing to fight for their rights. [...]

4.1.2 Invoking Qing to Mitigate Undesirable Results of State Law

State law is not completely irrelevant in shaping Putianese people's legal consciousness. For example, state law has a significant impact on people's understandings of local custom in the interaction of lianggu with China's population policy - a form of state law that changed people's family structures substantially in recent decades. China's birth policy has experienced three important turning points in recent history: the implementation of the one- child policy, the relaxation of the one-child policy, and the shift from the one- child policy to the two-child policy. The one-child policy was first imple­mented in 1979 in China to curb population growth.

Born and raised under the strict one-child policy, all my interviewees in Putian started their descriptions of the local custom of lianggu by pointing out the impact of the one-child policy on ordinary Putianese people's family structures and attitudes towards marriage. The legal framework is so influential that all women I interviewed in Putian maintain that there is a close linkage between China's population policy and their choices in marriage and child­bearing. The most significant influence of China's population policy, according to these women, is that it has made lianggu a popular practice in Putian. In her interview, Lu, a 29-year-old civil servant, told me that, after the implementation of the one-child policy, many families in urban areas of Putian ended up having a single daughter, while many families in rural areas had two daughters. The lack of a son made it necessary to have a daughter to practise lianggu in order to take care of the old and carry on the family name and property. [...]

In this case, China's population policy contributes to the prevalence of lianggu by transforming ordinary people's family structures, familial relation­ships, and understandings of the local custom of lianggu. At the same time, following the custom of lianggu represents Putianese daughters and their parents' strategy to mitigate one of the most unfortunate consequences of the one-child policy, namely having no male descendants to support the older generation.

In order to mitigate this negative result of the one-child policy, Putianese daughters choose their partners strategically. Being the eldest daughter of her family, Tian stated that she would ask the man at the very beginning of their relationship whether he could accept lianggu, because she would not want to waste her time on those who could not. For Tian and some other leftover women in Putian, being leftover in the marriage market is more acceptable than being a daughter who turns down her parents' requests to provide old-age support. Tian takes it for granted that it is her responsibility to practise lianggu in order to secure the interests of her parents and make them happy. According to Tian, choosing lianggu is almost the best thing she can think of to show how grateful she is to her parents. In fact, virtually all of my interviewees tended to show sympathy for their parents who were deprived of the chance to have a male descendant because of the one-child policy. Their willingness to follow the practice of lianggu offers their parents a sense of security regarding their eldercare. Therefore, choosing lianggu illustrates a form of legal consciousness in which qing directly redresses negative social outcomes arising from state law.

4.1.3 Resistance of State Law to Protect Qing

China's one-child policy makes it difficult for parents to continue their family lines if they do not have male descendants. Lianggu improves the situation by requiring a couple to carry on the family line of both sides. In order to achieve this end, it is ideal for each married couple to have at least two children. In most cases, Putianese women who choose lianggu will give birth to two children, regardless of whether it is legal or not. [...]

Before the shift to the universal two-child policy, choosing to work for private companies or finding a non-permanent job in order to have two children was a popular strategy for Putianese women who wished to follow lianggu and fulfil their filial duty by passing down their family names.

One important feature of this third form of legal consciousness is that people are quite willing to accept responsibility for the consequences of violating the state law. These women emphasize that taking responsibility for one's own actions is required of any good citizen. Nonetheless, qing justifies their violation of law from two aspects. First, as the population policy has not taken account of qing, ordinary people prioritize local custom over state law to guide their behaviour. Second, since being responsible for one's own actions is a vital requirement of qing, people do not try to escape punishment for their direct resistance of state law. Qing explains how Putianese women can reconcile their lawbreaking behaviour and their per­ceptions of themselves as law-abiding citizens. In this sense, a focus on the role of qing clarifies the legal consciousness of women by highlighting not only their reluctance to use the law, but also their direct resistance to it.

4.1.4 Dismissal of State Law When Breaking the Law Conforms to Qing Shun illustrates another form of legal consciousness by focusing on the limited efficacy of official efforts to enforce the law that prohibits childbearing out of wedlock. While China's current population policy encourages each married couple to have two children, relevant laws and policies still deny leftover women's reproductive rights and constrain childbearing within mar­riage. In rural China, however, villagers consider a couple as married once they invite their relatives and friends to a wedding banquet. Thus, it is not unusual for the couple to live together after the wedding banquet and have babies without going through the legal process of getting married.

Quite a few couples in Putian have already had a child or even several children before they are legally married. Many friends of mine did not go through the legal process of marriage when they gave birth, and the local cadres did not mind as long as they were engaged or had a wedding banquet in the village.

In Shun's opinion, the state law is not effective, as many people manage to give birth outside marriage without being punished. Indeed, in most cases, local cadres are themselves members of the village society, and they share a similar understanding of qing with villagers. Village cadres are reluctant to report those who break the law if the actions of these villagers are compatible with qing.

Thus, the legal consciousness of Shun, her friends, and the village cadres reflects the old saying that “law should not, and could not penalise the majority” (1⅛^m^). This saying means that, if the majority breaks a particu­lar law out of the belief that doing so conforms to the requirements of qing, then qing should prevail and the law should not punish them. As long as many people participate in the practice, the majority has justice on its side. The main feature of this form of legal consciousness is that, when state law is against qing, ordinary people's beliefs about what the law should be are more influential than state law itself in shaping people's legal consciousness.

To summarize, these four forms of legal consciousness illustrate that, when people hold negative attitudes towards state law, they tend to use qing rather than the law to guide their behaviour - and they believe qing can fix the undesirable consequences of the state law.

4.2 Law in Alliance with Qing

In a society that is undergoing dramatic economic, cultural, and legal changes, it is not surprising for qing to differ from what it used to be. The fact that people believe law is secondary to qing does not necessarily mean that people do not expect the law to reinforce qing or promote new understandings of qing as conditions change. Putianese women's legal consciousness shows that, when law is - or could become - congruous with qing, people anticipate that law should play a more important role in enforcing qing or transforming old understandings of qing to help it catch up with social changes.

4.2.1 Embrace of State Law When It Enforces Qing

Although Putianese people consider it normal for a couple to give birth without going through the legal process of getting married, people still attach a stigma to single mothers and assume that women who give birth out of wedlock are immature, irresponsible, and lacking in the ability to control their own bodies. Even some leftover women themselves share this belief, which serves as the principal barrier to their childbearing in Chinese society. It is predictable that people may develop a more inclusive attitude in the future towards mothers who are single by choice. At this moment, however, child­bearing out of wedlock goes against Putianese people's understandings of qing, as the majority still believes it is immoral for a single woman to become a mother. [...]

[Women who adhere to this belief] demonstrate a distinctive form of legal consciousness with regard to official Chinese population policy prohibiting childbearing out of wedlock: embrace of the law when it enforces qing. These women believe that, if a single woman becomes a mother, she will have to suffer from abandonment or discrimination, and thus state law should protect them by constraining childbearing within marriage. Indeed, my interviewees fail to acknowledge that women have the right to choose any kind of family structure, including a single-parent family. Their legal consciousness, how­ever, reflects a prevalent belief among ordinary people that state law should protect its citizens by punishing those who act against qing. One important feature of this form of legal consciousness is that state law has been considered a source of support for qing and not in opposition to it.

4.2.2 Perception of State Law As Too Weak When It Fails to Transform “Old” Understandings of Qing

A final form of legal consciousness is evident among interviewees who view law as potentially useful in promoting new understandings of qing. Unfortunately, in their view, state law falls short of achieving the desirable transformation of social and cultural norms regarding leftover women. For example, Yue, a 27-year-old medical laboratory scientist, was the only Putianese women in this study to suggest that single women should be granted reproductive rights. According to Yue, some women desire for valid reasons to become single mothers by choice, but the current social environment makes it difficult to do so. She herself would probably not choose to be a single mother, even if it were legalized, because it might endanger her relationship with her father, a traditional Putianese man, who firmly believes that it is immoral to give birth outside marriage. Yue argues that law's refusal to legalize single women's reproduction reinforces the widespread belief that becoming a single mother by choice is morally unacceptable.

In Yue's view, the law is rather weak in protecting single mothers from the pressure imposed by family members as well as by society in general, as many people do not consider leftover women's reproduction as consistent with qing. But Yue views people's understandings of qing as malleable - they may change at different times and under different situations. Yue believes that state law needs to shoulder the responsibility of helping to challenge social discrimination against single mothers. This distinctive form of legal conscious­ness, therefore, perceives the law as too weak, when it could potentially be more useful to help transform qing. People such as Yue may adopt this form of legal consciousness when local customs and other social norms are not inclusive enough to accommodate the needs of people who disagree with the dominant understandings of qing. They may then look to state law to transform qing to ensure social justice - but the inability of law to achieve this goal generally leaves them disappointed and even disillusioned.

To summarize, by exploring the legal consciousness of ordinary Putianese women born and raised under the one-child policy, I have detected two broad ways in which the interaction of law and qing relates to Chinese people's thoughts and actions. I argue that these variations of legal consciousness result from the dynamic relationship between qing and legal orders - both state and non-state. Ordinary Chinese people invoke qing to form their own ideas of justice and fairness and decide whether they should prioritize a particular legal order over others. If people consider a particular legal order as conflicting with qing, they choose to avoid or resist it. At the same time, they may turn to other legal orders that meet the demands of qing. When the outcomes of state law endanger their interests, people may deploy qing to confront the problems arising from state law. When the majority considers breaking a certain official law is consistent with qing, people will dismiss state law and view those who violate it as law-abiding citizens. On the other hand, when state law supports and reinforces qing, people embrace it and expect it to protect the citizens. As the meanings of qing are subject to the ever-changing social environment within which people form their understandings of it, people expect that state law should play a positive role in transforming qing in order to create har­mony, respect, and justice in society.