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.
[...] Therefore, the requirements of being a Putianese wife in a traditional Putianese family make it extremely important for parents who do not have sons to have at least a daughter to practise lianggu. For these parents, their daughter's refusal to practise lianggu would mean the possibility of having no one to support or take care of them when they are in their old age. Even worse, it is likely that no one will visit their grave to sweep away the dirt after their death.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.
Each couple in urban areas was allowed to have only one child with very few exceptions, while, in rural areas, a married couple had the opportunity to give birth to a second child if the first one was a girl. In 2009, all provinces in China allowed couples to have two children if both parents did not have siblings and, in late 2013, the policy was further relaxed in many provinces to allow families to have two children if one of the parents was an only child. The two-child policy replaced the one-child policy in late 2015. In effect since 1 January 2016, the two-child policy allows all married Chinese couples to have two children.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.
As the one-child policy ignores qing, Putianese daughters and their parents must invoke qing themselves to deal with the undesirable outcomes caused by this form of state law.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.
Some women chose to quit their government job shortly before they gave birth to the second child. The legal consciousness of [such] women who strategically engaged with the law to have more children exemplifies yet another form of legal consciousness: resistance of the law to protect qing.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.
Shun argues that law's restrictions have only a limited impact on childbearing out of wedlock, and therefore she concludes that obedience to the law is unimportant when the majority do not think breaking it is against qing. She says: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.
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