FROM ''FREEDOM OF MARRIAGE'' TO ''SELF- DETERMINED MARRIAGE'': RECASTING MARRIAGE IN THE...

FROM ‘‘FREEDOM OF MARRIAGE’’ TO ‘‘SELF-DETERMINED MARRIAGE’’: RECASTINGMARRIAGE IN THE SHAAN-GAN-NING

BORDER REGION OF THE 1940S

XIAOPING CONG

University of Houston, USA

This article is based on recently released archival documents produced by the HighCourt in the Shaanxi-Gansu-Ningxia Border Region during the 1940s. Throughanalysis of a number of legal cases concerning marriage disputes, this articlechallenges the previous scholarly assumption, prevalent since the 1980s, that theCCP failed at its promised project of liberating women. This article argues that theCCP indeed adjusted its policies on women and marriage in the new revolutionarybase, but this adjustment was for the purpose of adapting to a new social andcultural ecology that differed from the previous revolutionary bases where radicalpolicy had been formed. In implementing the regulation, the legal system graduallydeveloped a new principle of ‘‘self-determination’’ in judging marriage disputes,which granted female litigants choice regarding their marriages. The author arguesthat this new principle aimed to disentangle women from the old patriarchalsystem, thereby undermining patriarchal power, and empowered women. Itrepresented a step toward women’s acquisition of independence and right tochoose marriage partners.

KEYWORDS: Shaan-Gan-Ning Border Region, marriage reform, gender

‘‘Freedom of marriage (婚姻自由 hunyin ziyou)’’ was an important component ofthe iconoclastic New Culture and May Fourth discourses on women because itchallenged the authority of patriarchal power and the traditional power structureof the family. The New Culture and May Fourth movements arose at about thesame time as the introduction of Marxism, socialism, and communism into China,which greatly influenced the May Fourth discourse on women and marriage. MayFourth thinkers favored liberating women from ‘‘feudal’’ patriarchal oppressionand loveless marriages, and their arguments became an important part of the socialtransformation of twentieth-century China. The marriage reforms undertaken inthe Communist revolutionary base areas of the Shaan-Gan-Ning Border Region(陕甘宁边区 SGNBR, or Border Region) from the 1930s to the 1940s marked animportant moment in early social reforms, and had a profound effect on post-1949social policy.

Twentieth-Century China tcc22.3d 16/7/13 22:11:32The Charlesworth Group, Wakefield +44(0)1924 369598 - Rev 9.0.225/W Unicode (Oct 13 2006)

Twentieth-Century China, 38. 3, 184–209, October 2013

# Twentieth-Century China 2013 DOI: 10.1179/1521538513Z.00000000026

Based on analysis of legal cases involving marriage disputes from recentlyreleased archival documents of the High Court in the SGN Border Region duringthe 1940s, this article challenges the previous scholarly assumption, prevalentsince the 1980s, that the Chinese Communist Party (CCP) failed in its promisedgoals of marriage and family reform and the liberation of women from patriarchalpower. This article argues that the CCP did indeed adjust its policies on marriagein the new revolutionary base, but the purpose of this adjustment was to adapt to anew social and cultural ecology that differed from the previous revolutionary basesin which the radical policy was formed. Instead of compromising the principle ofmarriage reform, the CCP’s legal practice gradually transformed the May Fourthconcept of ‘‘freedom of marriage’’ to a more effective principle of ‘‘self-willing/self-determined (自愿/自主 ziyuan/zizhu)’’ marriage. This principle was in fact writteninto the revised 1944 and 1946 marriage regulations and put into legal practice,but the implication and significance of the revision have been overlooked andmisunderstood by previous studies. This reform under the new principleendeavored to disentangle women from the old patriarchal system whileundermining patriarchal power and empowering women. A large number ofarchival documents demonstrate the origins and early implementation of thisprinciple in the Border Region of the 1940s, and that it continued to develop andwas extended into nationwide legal practice after 1950. The belief in self-determination was later granted legal status in the contemporary Chinese CivilCode, promulgated by the legislature, as an individual’s right to marriage (婚姻自

主权 hunyin zizhu quan).1

RETHINKING THE TWENTIETH-CENTURY REVOLUTIONARY DISCOURSE

ON MARRIAGE

ManyMay Fourth writers focused onwhat they considered the miserable condition ofwomen in family life, which condemned many young women to wither away withintraditional Chinese elite families due to loveless arranged marriages.2 Some authorscriticized Confucian doctrine regarding women’s chastity and restrictions against theremarriage of widows,3 and called for a revolution in family life by advocating theideas of free marriage, free divorce, monogamousmarriage, and the nuclear family. Atthe same time, they denounced the ‘‘traditional’’ model of the extended family.4


1 See ‘‘Zhonghua renmin gongheguo minfa tongze (The General Civil Code of the People’sRepublic of China, Promulgated on April 12, 1986).’’ For Chinese version, see http://www.law-lib.com/law/law_view.asp?id53633 (accessed September 8, 2011). For an English version, seehttp://www.dffy.com/faguixiazai/msf/200701/20070119171429.htm (accessed September 8,2011). Term 103 of the Civil Code states that ‘‘Citizens shall enjoy the right of marriage bychoice (zizhu quan). Mercenary marriages, marriages upon arbitrary decision by any third partyand any other acts of interference in the freedom of marriage shall be prohibited.’’

2 See, for example, Pa Chin (Ba Jin), Family, trans. Sidney Shapiro (Prospect Heights, IL:Waveland Press, 1989, c. 1972).

3 Lu Xun, ‘‘Wo zhi jie lie guan (My View of Chastity),’’ and Hu Shi, ‘‘Zhencao wenti (TheIssue of Women’s Chastity)’’, in Wusi shiqi funu wenti wenxuan (Collections on Women’s IssuesPublished in the May Fourth Period) (Beijing: Sanlian shudian, 1981), 115–23, 106–14.

4 Susan Glosser, Chinese Visions of Family and State, 1915–1953 (Berkeley: University ofCalifornia Press, 2003), 1–26.

FROM ‘‘FREEDOM OF MARRIAGE’’ TO ‘‘SELF-DETERMINED MARRIAGE’’ 185

Without a doubt, the May Fourth discourse created a progressive movement thatencouraged young elite women to resist the domination of the traditionalConfucian family and inspired educated women to pursue spiritual and economicindependence. It is no exaggeration to say that May Fourth thinking on womenled to a fundamental change in the position of women in both society and thefamily. Throughout the 1920s and 1930s, these changes occurred only in urbanareas among educated women. Later, however, the CCP would recast the conceptand practice of traditional marriage in an entirely different social, geographical,and cultural environment.

Although communism as an urban intellectual movement beginning in the1920s was involved in organizing female factory workers to struggle for betterworking conditions and increased wages, the efforts of Communist female leadersto change the status of women were not seen as priority by a party leadershipdominated by male intellectuals.5 Early CCP leaders also paid little attention to theissues of marriage and family reforms and rural women’s conditions until theyestablished a Soviet government at their rural Jiangxi revolutionary base.6 Inresponse to demands from rural women who suffered from poverty and unhappyfamily lives, the Jiangxi Soviet government issued a marriage regulation in 1931that, under the influence of the Soviet Union’s legal code of 1926, granted womenfreedom of marriage and divorce.7 This regulation was revised into the MarriageLaw of 1934, which placed a moratorium on divorces of Red Army soldiers, in theinterest of military stability, when their wives demanded them.8 Previous studieson the marriage reform in Jiangxi have noted that the real conditions of theimplementation and the effectiveness of this regulation are difficult to discern,except for the results propagated by the official documents of the CCP.9

After the Long March, in 1936 the CCP reestablished its revolutionary base inthe most poverty-stricken rural regions of northern China. CCP control coverednorthern Shaanxi (陕北 Shaanbei), eastern Gansu (陇东 Longdong), and a smallpart of southern Ningxia, collectively known as the Shaan-Gan-Ning BorderRegion. Not until 1939, when the Border Region government eventually stabilizedits control against the sieges of the Nationalist army and attacks from localwarlords and bandits, did it effectively extend its administrative power to village


5 Christina Gilmartin, Engendering the Chinese Revolution: Radical Women, CommunistPolitics, and Mass Movements in the 1920s (Berkeley: University of California Press, 1995).

6 Patricia Stranahan, Yan’an women and the communist party (Berkeley: University ofCalifornia, Institute of East Asian Studies, 1984), 9–24; Delia Davin, Woman-work: Women andthe Party in Revolutionary China (New York: Oxford University Press, 1980), 21–23.

7 ‘‘Zhonghua Suweiai Gongheguo hunyin tiaoli’’ (The Marriage Regulation of the ChineseSoviet Republic), Jiangxi Su qu funu yundong shiliao xuanbian (Selected Collection ofDocuments on the Women’s Movement in the Jiangxi Soviet Region), compiled by JiangxiProvincial Association of Women’s Federation and Jiangxi Provincial Archives (Nanchang:Jiangxi renmin chubanshe, 1982), 33–35; also see M. J. Meijer, Marriage Law and Policy in theChinese People’s Republic (Hong Kong: Hong Kong University Press, 1971), 49, 52–53.

8 ‘‘Zhonghua Suweiai gongheguo hunyin fa (Marriage Law of the Chinese Soviet Republic),’’Jiangxi Su qu funu yundong shiliao xuanbian, 176–78.

9 Meijer, Marriage Law and Policy in the Chinese People’s Republic, 42–43; Davin, Woman-work: Women and the Party in Revolutionary China, 28–29; Stranahan, Yan’an women and thecommunist party, 9–24.

186 XIAOPING CONG

populations by establishing sub-regional, county, and township governments. Inthe same year, the border government also established a juridical system, with aHigh Court for appeals and reviews and county courts for primary trials.10 Thislegal system, though often mingled with the administrative system, particularly atthe county level, became an important means of carrying out social reform projectsin the 1940s.

Unlike the 1950s, when land reform and marriage reform went hand-in-hand inrural areas to help mobilize women, the marriage reform beginning in 1939 tookplace in varied social conditions. As Pauline Keating points out, social and ecologicalconditions varied even within this limited area of the Border Region, as did theimplementation of revolutionary land policies.11 In the Longdong subregion (分区

fenqu), the revolutionary government led by Liu Zhidan (刘志丹 1903–1936) andothers had launched a land revolution in 1933, while some areas of the Yanshusubregion instigated the campaign in 1936 but halted it after 1937 because of apolicy change due to the establishment of the United Front.12 Since both theLongdong and Yanshu subregions were areas of scarce population with vast land,13

the majority of poor families became small landowning farmers; in other subregions,like Suide and Guanzhong, landownership did not change significantly but thepolicy emphasized reducing peasants’ burden of rent and loan interest (also called‘‘double reductions’’ 双减 shuang jian) after 1937.14 Nonetheless, both land reformand the ‘‘double reductions’’ were welcomed by locals because they laid a solidfoundation for the marriage reform and other social reform projects.

The principle of the marriage reform, simplified into the slogan ‘‘hunyin ziyou,’’was broadcast to a wide audience of local farmers. The 1939 regulation, animproved version of the 1934 marriage law, was indeed revolutionary in that itintended not only to regulate marriage as a union of a man and woman on the basisof free will and love but also to ban many practices that the government regardedas backward, such as concubinage (纳妾 na qie), foster child/daughter-in-law


10 The SGN High Court, established in 1937, was in the second tier of a nominally nationalthree-tiered system, since it assumed that the Nationalist Highest Court in Nanjing was itssupreme court. In 1942, it experienced a reform in which a government trial committee wasestablished, functioning as a supreme court. However, the Border government abolished the trialcommittee a year later and redesigned the court system after 1943, which nominally restored itstwo-tiered form but actually operated in three tiers by adding subregional courts as thedispatched branches of the High Court. See Wang Shirong, Liu Quan’e, Wang Jide, and Li Juan,Xin Zhongguo sifa zhidu de jishi—Shaan-Gan-Ning bianqu gaodeng fayuan, 1937–1949 (TheCornerstone of the Judicial System for New China—The High Court of the SGN Border Region,1937–1949) (Beijing: Shangwu yinshu guan, 2011). The SGN juridical system is an importanttopic that deserves more extensive study and discussion than is possible in this space.

11 Pauline Keating, Two Revolutions: Village Reconstruction and the CooperativeMovement in Northern Shaanxi, 1934–1945 (Stanford, CA: Stanford University Press, 1997),1–89.

12 The implementation of this policy also had to wait until 1939, after the SGN territory wasstabilized.

13 Qingyang diqu zhi bianzuan weiyuan hui, Qingyang diqu zhi (Qingyang District Records)(Lanzhou: Lanzhou daxue chubanshe, 1993), 468–69.

14 Liu Fengge (ed.), Longdong de tudi geming yundong (Land Revolution in LongdongArea) (Zhonggong Qingyang diwei dangshi ziliao zhengji bangongshi, 1992), 2–44; PaulineKeating, Two Revolutions, 65–75.


(童养媳 tongyangxi),15 buying/selling marriage (买卖婚姻 mai mai hunyin),16

arranged marriage (包办 baoban), and marriage by force (强迫 qiangpo).17

However, the implementation of this regulation was not a smooth process; it metwith resistance and criticism from local villagers, especially farmer’s families withyoung males. Amid this criticism and protest, the regulation was revised in 1944and then revised again in 1946.

These revisions, while still promoting the principle of free will in marriage, setup some restrictions on marriage practices, particularly divorce. Although the CCPimplemented the changes to respond to immediate economic and military crisesand wartime conditions, the central issue for later historians is how to assess themin light of women’s emancipation. From the 1970s to 1980s, evaluation of themarriage regulation revisions polarized the field. M. J. Meijer’s pioneering studyon the marriage reforms offers an affirmative appraisal of the revolutionary natureof the reform, although he sees the 1934 Marriage Law as ‘‘a concession’’ tosoldiers’ complaints that required sacrifice from women.18 Davin provides a vaguebut also generally positive assessment of the achievement of the revolution inenhancing women’s position in marriage and the family. She is convinced thatthough the revision of the marriage regulations compromised the revolutionaryprinciple of free marriage, it derived from ‘‘the military and political situation’’faced by the border region in 1942.19 Later scholars disagreed with Davin’ssympathetic defense and spoke against a positive assessment of the revolution.

In the early 1980s, some Western scholars who visited China were apparentlydisappointed with women’s conditions there. In their eyes, the Communistrevolution had not brought drastic improvements to the lives of Chinese women.They believed that this unchanged condition stemmed from the revolution’s failedpromises to women that could be traced back to the marriage regulations revisedin the 1940s. They assumed the revision was the result of the CCP backing offfrom its previous idealism and radicalism in the cause of women’s liberation inorder to gain male farmers’ support for its warfare against the Japanese and the


15 I agree with Philip Huang, who argues that the current English translations for tongyangxi(‘‘child bride’’ and ‘‘adopted daughter-in-law’’) do not accurately indicate the meaning of the termand suggests using the Chinese term directly (see Chinese Civil Justice, Past and Present [Lanham,MD: Rowman & Littlefield, 2010], 12n).

16 The English term of ‘‘purchased marriage’’ is also problematic because it only indicates thebuying party and does not have the connotation of its original Chinese term, ‘‘buying and selling’’(mai mai), which encompasses the activities of the woman’s family. For convenience, I use‘‘purchased marriage’’ in this article but sometimes, to underline a particular behavior, I also referto ‘‘buying’’ or ‘‘selling’’ a marriage.

17 ‘‘Shaan-Gan-Ning bianqu hunyin tiao li, 1939 (Marriage Regulation of the SGN BorderGovernment, April 4, 1939),’’ in Shaan-Gan-Ning bianqu funu yundong wenxian ziliao xuanbian(A Documentary Collection on the SGN Women’s Movement) (Xi’an: Shaanxi ProvincialWomen’s Federation [compiled and printed], 1982), 54–56.

18 Meijer, Marriage Law and Policy in the Chinese People’s Republic, 42–50.19 Davin, Woman-Work: Women and the Party in Revolutionary China, 35–40.

Unfortunately, Davin does not provide any solid case studies and also assumes that the marriageregulations were not carried out in the area (38). This statement contradicts the legal records Ihave examined.

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Nationalists.20 Some scholars have tried to mitigate this accusation by stating thatthe reestablishment of patriarchy in post-1949 rural China may not have been theintention of the Communist revolution, but that the male-dominated leadership ofthe party failed to overcome their male-centered perspective on policyimplementation, thus preventing social reform of gender equality.21 At any rate,the CCP’s failed promises to women, rooted in its 1940s practices, meant thatwomen continued to live in a patriarchal society.22 This conclusion attributes therevised policy of the 1940s on women and marriage to the result of a negotiationbetween rural males and the all-male leadership of the CCP, but ignores women’srole in local activities and legal processes. From a Western feminist perspective,this assumption overemphasized the changed terms for divorce as a measure ofgender equality, but ignored other modifications that might have been moresignificant in the historical context. Moreover, their evaluation of the 1940srevisions of the marriage regulations, also based on policy studies and theoreticalsupposition, oversimplified a complex process, in which the achievement of amulti-faceted social transformation required various steps and certain conditions.

Over the past two decades, the issue of Chinese women’s position in the familyand society has been revisited by a new group of scholars in both America andChina. Departing from previous policy studies, some scholars have expanded theirresearch to villages to discover the degree to which women’s lives have beeninfluenced by political campaigns in past decades, and through interviews withlocal village women investigate how they view important political movementssince the 1950s such as land reform, the campaign to implement the MarriageLaw, rural collectivization, and the Great Leap Forward.23 Among these scholars,Neil Diamant, through fieldwork on the implementation of the 1950 MarriageLaw and the marriage conditions of both urban and rural women in the 1950s,strongly opposes the assumption that the CCP compromised with rural patriarchalpower at the expense of women’s rights. Instead, he offers a much more dynamicpicture of state power at the local level, in which village cadres had no intent orauthority to hinder women’s divorce actions but rather turned over problems tothe higher authority, which held to a much stronger revolutionary principle ofhelping women escape their unhappy marriages.24 Even with these excellent


20 See Kay Ann Johnson, Women, the Family and Peasant Revolution in China (Chicago, IL:University of Chicago Press, 1983); Judith Stacey, Patriarchy and Socialist Revolution in China(Berkeley: University of California Press, 1983); Phyllis Andors, The Unfinished Liberation ofChinese Women, 1949–1980 (Bloomington: Indiana University Press, 1983); Patricia Stranahan,Yan’an women and the communist party.

21 Margery Wolf, Revolution Postponed: Women in Contemporary China (Stanford:Stanford University Press, 1985).

22 This view still dominates studies of the 1940s SGN Border Region and the conclusionsfrom these works continue to be cited in the recent scholarship. See Keating, Two Revolutions, 7;and Huang, Chinese Civil Justice, Past and Present, 109–13.

23 See Gail Hershatter, ‘‘State of the Field: Women in China’s Long Twentieth Century,’’Journal of Asian Studies, 63.4 (November 2004), 991–1065.

24 Neil J. Diamant, ‘‘Re-examining the Impact of the 1950s Marriage Law: StateImprovisation, Local Initiative and Rural Family Change,’’ China Quarterly, 161 (March2000), 171–98. Also see his Revolutionizing the Family: Politics, Love, and Divorce in Urban andRural China, 1949–1968 (Berkeley: University of California Press, 2000).


studies on the post-1949 period, the implementation of the marriage reform and itsimpact on the lives of men and women in the 1940s revolutionary region are stillunclear. A more effective assessment on the topic is thus needed.

I turn away from the problematic question of whether or not the CCP revolutionfulfilled its promise to liberate women and approach marriage reform in the SGNBorder Region during the 1940s from a cross-cultural perspective. My research showsa much more deeply rooted conflict and interaction, in which an imported idea andlocal practices interplayed and were mutually recast. With supporting evidence fromlegal cases and local gazetteers, I view the revisions of marriage regulations, throughthe revolutionary state’s interaction with local culture, as an important step toovercome the confusion caused by a clash between urban- and foreign-oriented idealsand the social and cultural reality of the locality. The revisions and legal practices in the1940s SGN Border Region transformed marriage from a family matter and atraditional patriarchal prerogative to the individual choice of women, which laid anecessary foundation for the later revolution in marriage and family. The archivaldocuments produced by the SGN High Court in the 1940s provide evidence for thisstudy: a rich and detailed source of various types of marriage disputes that occurredduring this period is now available. These documents of course have certain problems,including incomplete case files, damaged pages, unreadable handwriting, anddisorganization. Despite these defects, these documents hold great value. Unlike thedocuments produced by Qing county courts, which were often formatted by legalexperts (师爷 shiye), the documents of the SGN High Court came from local courtsecretaries who had limited education and legal training. Their disadvantages at thetime have become advantages for us today: the records were written in a plain stylebased on the original words of the illiterate litigants, bothmales and females, so that weare able to view these records today not through the lens of legal experts but instead ofordinary people. Moreover, these documents offer us a concrete picture of marriagedisputes among villagers under Communist rule and the extent and degree ofeffectiveness to which the marriage reform was carried out.

THE CULTURAL AND SOCIAL SETTING OF MARRIAGE REFORM

The region that the SGN border government controlled in the 1930s and 1940s wascharacterized by unique features, and its geographical and ecological characteristics andcultural and social customs differentiated it from previous Communist revolutionarybases in southern China, as well as from the environment where the May Fourthdiscourse was shaped. The northern boundary of this region bordered the Mongolianprairie and had traditionally been at the edge of the ‘‘Confucian empire’’ up to the endof theQing dynasty. The local culture displayed amixture of ‘‘orthodox’’ state ideologyand a patriarchal tradition with deeply rooted ‘‘heterodox’’ steppe customs absorbedfrom the nomadic people living on the Mongolian prairie. It was a politically insulatedregion, experiencing little impact from national events such as the RepublicanRevolution in 1911 or the anti-traditional New Culture Movement and anti-imperialism campaigns during the 1920s, until Communist forces arrived on the scenein the 1930s—first the local Communist guerrilla force led by Liu Zhidan, and then theCentral Committee of the Communist Party and the Red Army after the Long March.

The family structure and marriage traditions in this region also departed fromany stereotype of ‘‘Confucian patriarchy’’ as described in the May Fourth


190 XIAOPING CONG

criticism, due to its geographical character and the influence of steppe culture.Various forms of family and marriage practices stemmed from this culturalblending. First, as a previous imperial frontier, some counties were simplyestablished by the end of the Qing and some by the Communist power in the1930s. Weak administrative power made the region much less influenced byConfucian dogma. Although the Confucian elite family was indeed at the top ofthe local hierarchy among educated people, their numbers were very small.Moreover, the family structure in the region, like rural families in other regions,differed greatly from that of elite families described in the May Fourth discourse.25

Various documents preserved in the Shaanxi and Gansu archives show that mostfarmers’ families of the middle to lower classes were small in size and made up ofonly two or three generations—usually a young couple with their parent(s) plusminor child(ren), or simply a couple with their unmarried child(ren). Also, oncebrothers were married the division of the household became inevitable. It was thusvery rare to see a large household with an extended family in which ‘‘fivegenerations (of males) under one roof’’ lived together, as described in Johnson’sbook.26 Lastly, the fluidity of the population in the region, caused by the flow ofmigrant workers and drifters looking for food, resulted in family instability.27


25 In the 1930s, the pioneer sociologist and anthropologist Fei Xiaotong, in his study of theJiangnan region, demonstrated that a majority of farmer families in Chinese villages were smallnuclear families, while bigger families of literati-elite might still be small in number and exist intowns and urban areas (see Fei, Peasant Life in China: A Field Study of Country Life in theYangtze Valley [London: Kegan Paul, Trench, Trubner & Co. Ltd, 1939], 27–29). Recent studiesby Chinese scholars on rural families from the 1930s to the contemporary era also argue that thelarge family with more than three generations living together as an extended family was simply aConfucian ideal but not Chinese reality. See Tan Tongxue, Qiao cun you dao: zhuanxingxiangcun de diode, quanli yu shehui jiegou (The Way of Qiao Village: Morality, Power and SocialStructure in a Transitional Village) (Beijing: Sanlian shudian, 2010); and Qin Yan and HuHong’an, Qing dai yi lai de Shaanbei zongzu yu shehui bianqian (Changes of the Clans and theSociety in Northern Shaanxi Since the Qing) (Xi’an: Xibei gongye daxue chubanshe, 2004).

26 Kay Ann Johnson, Women, the Family and Peasant Revolution in China, 9.27 The information about the social customs described in this section comes from the following

documents and scholarly works if not specifically noted: ‘‘Ge xian youguan de fengsu xiguan (TheRelevant Customs in Local Counties)’’, in ‘‘The Documents of the Shaan-Gan-Ning Border HighCourt’’ file no. 15–57, in Shaanxi Provincial Archives (in the following text, all sources from ShaanxiProvincial Archives will be abbreviated to SPA and file number); ‘‘Qingjian de hunsu (MarriageCustoms in Qingjian County),’’ Jiefang ribao (Liberation Daily), November 3 and 4, 1942; TheMinistry of Justice, Republican Government (compilation):Minshi xiguan diaocha baogao (Surveyson the Customs of Civil Affairs) (Beijing: Zhongguo zhengfa daxue chubanshe, 2005, reprint), 799–833; Ding Shiliang and Zhao Fang, comps., Zhongguo difang zhi minsu ziliao huibian: Xibei juan(ACollective Selection of Local Gazettes on Social Customs: Northwestern Region) (Beijing: BeijingTushuguan chubanshe, 1989), 109–26, 184–90; Yan’an Lu Xun Artist Academy (collected andcomp.), Shanbei minge xuan (Selected Folk Songs from the North Shaanxi Region) (unknown placeof publication: Xinhua bookstore, 1949), 1–120; Huachi xian zhi bianzuan weiyuanhui, Huachixian zhi (Huachi County Gazetteer) (Lanzhou: Gansu renmin chubanshe, 2004), 155–56;Qingyangdiqu zhi, 919–24. Also see Qin Yan and Yue Long, Zou chu fengbi: Shanbei funu de hunyin yushengyu (1900–1949) (Getting Out of Confinement: Women’s Marriage and Childbearing inNorthern Shaanxi, 1900–1949) (Xi’an: Shaanxi People’s PublishingHouse, 1997), 21–162; and QinYan, Qing mo Min chu de Shaanbei shehui (The Society of Northern Shaanxi in the Late Qing andEarly Republic) (Xi’an: Shaanxi renmin chubanshe, 2000), 87–128.


The forms of marriage varied based on economic conditions. Monogamy waspracticed by the great majority of people, though not all. Contrary to the MayFourth writers’ laments regarding restraints on widows’ remarriage, it wascommon practice in this region for a widow to remarry, often decided on either bythe widow herself or negotiated among the widow, her natal family, and herdeceased husband’s family. If the deceased husband’s family or the widow herselfinsisted on staying in that family, the widow could select a husband (坐堂招夫

zuotang zhaofu, lit. staying home and inviting a husband in), and their commonchildren would be divided as heirs of the two families. The practice of renting out awife (典妻 dian qi), a miserable practice described in Rou Shi’s short story,28 didindeed exist in local custom, but there was also a similar version of the practice formales. For example, if a man was too poor to find a permanent wife, he couldchoose to be a temporary/substitute husband (招夫 zhao fu, lit. inviting a[substitute] husband in) for a woman whose husband was absent from the familyfor a period of time or had left the family without further contact. He provided fullsupport to his temporary wife until the original husband came back.

May Fourth writings deplored the miserable conditions of women who began toserve as a tongyangxi at a young age. As in many other regions of China, thecustom for a girl to live and work in her future in-laws’ family and receive carewhile waiting for her future marriage was indeed practiced in the SGN region. Onthe other hand, a similar practice for males, though less seen than tongyangxi,zhannian han 站年汉, was also not uncommon in this region. In zhannian han,a boy or young man, generally from a poor family, lived with and worked for hisintended in-laws while waiting for his future bride to grow up. In this way thegirl’s family, which was comparatively better-off and needed a male laborer, wouldtake the years of the boy/man’s work as payment for the bride price and waive thebetrothal gifts (彩礼/财礼 caili) from his family.

Concubinage occurred among rich people who could afford more than one wife,while polyandry was practiced among poor people.29 This type of marriageoccurred when a husband was incompetent either in physical labor or procreatingability; his wife could invite another man into the family (招夫养夫 zhaofu yangfu)to play the role of husband in order to support the family, provide regular intimaterelations, and produce heirs for both sides of the male line.30 In contrast to the


28 Rou Shi, Wei nuli de muqin (A Mother as a Slave) (Shanghai: Shijie Yingyu bianyishe,1947).

29 Matthew Sommer also comes to the same conclusion in his study on the Qing legal casesin other parts of China. See ‘‘Making Sex Work: Polyandry as a Survival Strategy in Qing DynastyChina,’’ in Gender in Motion: Divisions of Labor and Cultural Change in Late Imperial andModern China, ed. Bryna Goodman and Wendy Larson (Lanham, MD: Rowman & Littlefield,2005), 29–54. Moreover, Zhang Zhiyong’s study on the Northern China revolutionary base areaduring the 1940s also shows a similar situation; see his ‘‘Huabei kang Ri genjudi funu yundong yuhun wai xing guanxi (Sexual Affairs and the Women’s Movement in Northern ChinaRevolutionary Base Areas),’’ Kang Ri zhanzheng yanjiu [Studies on the Anti-Japanese War], 1[2009], 77–86).

30 ‘‘Ge xian youguan de fengsu xiguan,’’ SPA 15–57.

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May Fourth writers’ criticism of the Confucian family, the family system and these‘‘heterodox’’ marriage practices in the region functioned as strategies for survivalrather than gender oppression. They did not specifically promote the subjugationof women; each practice applied to both males and females, though males mighthave had more options or opportunities to escape the despair than females did.

Like many other agricultural societies in the world, patriarchal power formedthe basis of the local power structure, in which a senior family member, usually thefather (though sometimes mothers, too), held control over other members of thefamily. However, this only describes a static system of patriarchal order; inpractice this power might be compromised, intervened in, and even limited byother members through participation in specific activities and operations. In both‘‘big tradition’’ and ‘‘little tradition’’ in different localities, patriarchal power neveroperated in its absolute form as described in the works of the May Fourth authorsor of some scholars that view women as an entity oppressed by all males.31

In the marriage practices of the Border Region, this power was embodied inarranged marriages for minors, both girls and boys. The ages for formal weddingsranged from thirteen to seventeen for girls and fifteen and up for boys/men, butparents frequently arranged engagements for their children beginning at age two.Under this system of arranged marriage at an early age, both girls and boys had tosubmit to their parents’ authority. This engagement was accompanied by betrothalgifts from the boy’s family to the girl’s family as a marker of validation andconsent to the marriage. Therefore, the engagement, accompanied by a series ofceremonies with various mediators in attendance, formed a written or oralcontract. Like many other types of contracts in the region, the marriage contractwas highly respected and deemed a formal legal document in any dispute. Anyparty who abandoned the contract had to offer compensation to the other party. Inthis region, any engagement and marriage was customarily the matter of twofamilies rather than two engaged individuals.32 When the May Fourth discourse,which pursued the ideal of two individuals’ free will for a marriage, landed in thisregion where family agency was still dominant, the ‘‘freedom’’ of the individualwas hijacked by and bundled into family agency in practice, thus becoming thefather’s privilege.

Although patriarchy dominated within the family, women were not entirelypowerless victims; instead they were able to carve out certain spaces for


31 Unlike Johnson’s view of family as a totally male-dominated domain, Davin objectivelyrecognizes senior women’s privileged position in a patriarchal system (Woman-Work, 49–50);nonetheless, Johnson, in order to employ male domination as a target, presents the division ofmales and females as the basic form in the Chinese patriarchal system. To emphasize this point,she regards matrilocal marriage as a ‘‘deviation’’ that was formed from women’s shame ratherthan male obedience (Women, the Family and Peasant Revolution, 12). Nonetheless, the cultureof the SGN region proved it a false description.

32 The documents of SGN Border courts concerning disputes about engagements anddivorces indicate that, as in late imperial times, these disputes were mostly between two or threefamilies instead of two or three individuals.


themselves.33 First, the widespread custom of female infanticide practiced in manyareas of southern China was not seen in this region. Baby girls were not considereda burden but as a family treasure. The SGN High Court recorded a number ofcases in which two or three families fought for custody or the residential rights ofyoung girls. In this region, a wedding marked adulthood for a woman and allowedher to escape from her parents’ authority. As adults, some married women triedevery means possible to benefit from the system. The tradition of dividing ahousehold among brothers after marriage allowed some young women to be incharge of their own families. Due to the remaining influence of matrilineal familypractices from the steppe culture, as well as the fluidity of the population, youngwomen had a certain amount of autonomy in this system. Many practices, such asarranged kidnapping or marriage by capture (抢婚 qiang hun) and runaway wives(逃妻 taoqi), provided ways for women to resist the domination of patriarchalauthority. At the same time, sexual relations outside of marriage (搭伙计 da huoji)and taking lovers (找干哥哥 zhao gan gege) were popular practices and becameoutlets for a woman to escape from an unhappy marriage and family difficulties.Local folk songs passionately affirmed these widespread practices, which had notbeen regulated by the state up to the early 1940s.

If we consider the family structure and marriage forms in this region as astrategy for economic production and survival, then love and sexuality can beviewed more as individual affairs that partially fell outside the circles of family andmarriage. However, the modern concepts that the May Fourth movementpromoted and the CCP’s marriage reform brought became attempts to enclosethe social institutions of marriage and family with love and sexuality within thesame circle, with love as the axis. It was this ‘‘incompatibility’’ of concepts inmarriage that made the early CCP policy on marriage, though idealistic, moreconfusing and seemingly improvised.

THE 1939 REGULATION AND ITS IMPLEMENTATION: THE ECONOMIC

CONFLICT BENEATH MARRIAGE DISPUTES

The Communists began their marriage reform work in 1939 within this social andcultural setting. The ideological basis of this reform came from both the MayFourth discourse on women, imbued by the Communists with a strong anti-traditional and anti-patriarchal significance, and the Marxist-Communist theorythat women’s liberation could be achieved through their participation in thegreater cause of human liberation. The CCP expected its policy on ‘‘hunyin ziyou’’to benefit women and thus be welcomed by them. It was hoped that this policy


33 The studies of Dorothy Ko (Teachers of the Inner Chamber: Women and Culture inSeventeenth-Century China [Stanford: Stanford University Press, 1994]), Susan Mann (PreciousRecords: Women in China’s Long Eighteenth Century [Stanford: Stanford University Press,1997]), Patricia Ebrey (The Inner Quarters: Marriage and the Lives of Chinese Women in theSung Period [Berkeley: University of California Press, 1993]), and Kathryn Bernhardt (Womenand Property in China, 960-1949 [Stanford: Stanford University Press, 1999]) show that elitewomen under the patriarchal system made efforts to carve out some spaces for themselves inimperial China. By the same token, women of lower social strata and rural women also had theability to do the same, but in different ways.

194 XIAOPING CONG

would save thousands of women from suffering in ‘‘unhappy’’ and ‘‘loveless’’marriages, and from the oppression of the patriarchy. It was within this theoreticalframework that the 1939 marriage regulation was promulgated, which requiredmarriage to be based on an individual’s free will (照本人之自由意志 zhao benrenzhi ziyou yizhi). It also decreed that either a husband or a wife could file fordivorce, after the couple had exhausted negotiations, if any of the following tenconditions had occurred, prioritized by their order: (1) bigamy, (2) totalincompatibility of (the couple’s) emotional relations and their wills, and inabilityto live together (感情意志根本不合，无法继续同居 ganqing yizhi genben bu he,wu fa jixu tongju),34 (3) adultery, (4) spousal abuse, (5) abandonment, (6) criminalframing of spouse, (7) impotence, (8) incurable disease, (9) lost contact for oneyear or more, or (10) other important reasons.35 The liberal principles of the 1939regulation did indeed embody the early idealism of the Communist revolutionregarding women’s liberation and gender equality. The liberal spirit of thisregulation was highlighted by use of the terms ‘‘free will’’ and ‘‘emotionalrelations/relationship’’ as the basis of marriage and also as the measurement fordivorce. However, these terms overlooked the fact that in the Border Region,marriage was neither an individual matter nor a question of emotional relationsand free will for individuals. It also failed to foresee later economic conflicts causedby marriage dissolutions.

Differing from the modern concept that a formal marriage starts from themoment of either the state’s or church’s validation of the union between a man anda woman, in the SGN border society’s traditions, a marriage was a long journeythat began with engagement, and the wedding, named guomen (过门 moving to[the husband’s] household), was viewed as the final establishment of the marriage.An engagement contract was followed by a process of property transformationthrough caili-giving that could last for more than a decade while the engagedcouple was growing up. Nonetheless, the 1939 regulation, backed by the modernconcept of marriage, did not consider engagement to have any legal status, andtherefore did not set up any terms for engagements nor for related issues such asproperty disputes.36 For locals, an engagement was almost equated withmarriage;37 a lawsuit brought for breaking an engagement was considered amarriage dispute as well. Facing this reality, local government cadres and legalworkers did not separate broken engagements from divorce cases, treating the two


34 The Chinese term ‘‘ganqing’’ is a word containing multiple meanings, but difficult toexpress in English. Philip Huang tries to translate it as ‘‘emotional relations’’ or simply‘‘relationship’’ to indicate the degrees and conditions of this term (see Chinese Civil Justice, Pastand Present, 12n). For convenience, I also adopt this translation, but sometimes also use‘‘emotional affection’’ to fit the context.

35 ‘‘Shaan-Gan-Ning Bianqu hunyin tiao li, 1939’’ term 11, in Shaan-Gan-Ning bianqu funuyundong wenxian ziliao xuan bian, 54–56.

36 In fact, the GMD Civil Code gave certain consideration to the status of engagement and itsrelated presents, but it dealt with betrothal presents as ‘‘donations’’ in exchange for the donee’strousseau. See Meijer, Marriage Law and Policy, 26–27.

37 This is not only a social custom for the SGN society but also a traditional Chinesemarriage practice. See Guo Songyi, Lunli yu shenghuo: Qing dai de hunyin guanxi (Ethics andLife: Marriage Relations in the Qing) (Beijing: Shangwu yin shu guan, 2000), 121–23.


with the same principles and in the same category as divorce until the 1944regulation began to distinguish between them.38

After the 1939 marriage regulation was promulgated, the divorce rate increased,as did cases of broken engagements. The record shows 48 marriage-relateddisputes among 273 total legal cases in all counties in 1939. In the first six monthsof 1941, marriage disputes increased to 71 out of a total of 271.39 In most cases awoman or her family proposed divorce or the abolishment of an engagement. Atthe same time, some male farmers were increasingly voicing their discontent.40

Superficially, these phenomena are easily read as a sign of the realization ofwomen’s liberation through ‘‘freedom of marriage,’’ or as a sign that conservativemale farmers were upset about the erosion of male domination. However, if wecarefully scrutinize concrete cases of marriage disputes, we find a totally differentpicture.

In the 1940s, many marriage disputes, including divorces and abolishment ofengagements, were related to the widespread local custom of betrothal gifts. Thepayment of caili varied in terms of time and amount, although the first caili wascertainly paid at the time the engagement was settled. When the formal weddingdate approached, some grooms’ families provided additional gifts to fill out thebride’s dowry; others did not. In some areas the groom-to-be’s family had anobligation to support the bride-to-be’s family by offering material and/or manualhelp. The first caili was likely to be grain or silver dollars for the bride’s family,while additional gifts given to the bride before weddings (二成礼 er cheng li) weremainly clothes, fabrics, cosmetics, jewelry, or personal goods such as quilts,bedding, washing basins, mirrors, and the like. Although a bride was expected tobring goods from her natal family to her husband’s family, the dowry was alwaysmuch smaller compared to the caili. In the late Qing and the early Republicanperiods, caili was rather small, since it was only a token of a promise of a marriageor a deposit for a bride. However, with the deterioration of the rural economy,natural disasters, famines, and bankruptcy of farmers in the region increasingbeginning in the late 1920s, the amount of caili gradually increased in the 1930s.To the SGN government, this practice crossed the line into what the marriageregulation called ‘‘purchased marriage,’’ causing a serious problem for legalpractices in the 1940s.

The price of caili was driven to an unprecedented level in the 1940s for multiplereasons. First, the arrival of Communist power in the region brought in a largemale population, including army soldiers, government workers, and war refugees,that enlarged the gap between the existing imbalanced ratio between males and


38 The statistics collected before 1944 combine both into one category of ‘‘marriage-relateddisputes’’; in order to determine the nature of the dispute we have to analyze legal documents on acase-by-case basis. Unfortunately, these cases are scattered in the archival collections. The localofficials also did not distinguish between the two in their reports to superiors, so the number ofdivorce cases adopted in previous scholarship citing these reports may not be accurate.

39 ‘‘Bianqu sifa gongzuo baogao (Report on the Border Legal Works),’’ SPA 15–175.40 ‘‘Guanyu lihun de zhiyi (Questioning the Issue of Divorce),’’ SPA 4–65.

196 XIAOPING CONG

females in the population.41 The shortage in the female population consequentlyresulted in the skyrocketing price of caili. Moreover, this rapid increase of thepopulation in a region that was geographically small, economically under-developed, and lacking in natural resources caused widespread inflation and thedevaluation of currencies, which also contributed significantly to the rising price ofcaili. In the early 1930s, the amount of a caili could range from 2 to 50 silver yuandepending on the area, but was mostly around 10 to 20 yuan. However, by themiddle of the 1940s, the price of the caili went as high as one million to one and ahalf million Republican yuan (法币 fabi42) in Yan’an and Eastern Gansu, whereinflation was more serious, while the lowest price was 3000 yuan fabi in Fuxian,or 200,000 Border Currency yuan (边币 bianbi) in other places less influenced bycurrency devaluation.43

Facing such inflation, most families that had engaged their daughters in the1920s and 1930s felt that their caili were set too low. Some demanded thatthe groom-to-be’s family pay a second caili, especially just before the wedding.The previously optional wedding gifts now became mandatory.44 Moreover, theamount of these second caili, in contrast to its previously symbolic nature, wasnow substantial and included currency, grain, and special gifts for the bride. If thegroom’s family refused or could not afford to pay, the wedding was postponedindefinitely or even cancelled. For the majority of girls’ families the mostconvenient method was to pretend that the first betrothal at a girl’s young age hadnever existed, and then find another family willing to pay the current price for the


41 Local gazettes indicate that the ratio between male and female before the coming of theCommunists was about 53–55 percent males and only 45–47 percent female of total population.This rate varied in various locations (see Qingyang diquzhi, 519). The imbalanced sex ratio inYan’an once reached thirty (male) to one (female) before 1938 and eighteen to one in 1941. Withmore female students from cities after 1938, the gap gradually narrowed but still was at eight toone in 1944. See Zhu Hongzhao, Yan’an: Ri chang shenghuo zhong de lishi, 1937–1947 (Yan’an:Daily Life in History, 1937–1947) (Guilin: Guangxi shifan daxue chubanshe, 2007), 283.

42 Fabi is the paper currency issued by the Republican government in 1935. One silver dollarsupposedly equaled one fabi yuan, but beginning in 1940 it rapidly devalued. In someNationalist-controlled regions, it fell to one silver dollar for 1000 fabi yuan in the mid-1940s and2000–3000 fabi in the late 1940s. In the Communist-controlled region, fabi seemed to devaluecomparatively slowly. On the other hand, the SGN government also issued its own currency,bianbi (Border currency) in 1941, attempting to reduce the impact of fabi devaluation whiledeveloping its own currency. Bianbi circulated concurrently with fabi and silver yuan for someyears in most parts of the SGN region, but bianbi gradually replaced fabi and silver yuan in themiddle of the 1940s. The SGN government originally stated that one bianbi was equal to onefabi. However, inflation in the SGN region eventually stabilized the exchange rate of one fabito nine bianbi in the mid-1940s. This situation lasted until 1949. Cf. Huachi xianzhi (HuachiCounty Records) (Lanzhou: Gansu renmin chubanshe, 2004), 528–30); Huang Zhenglin, Shaan-Gan-Ning bianqu xiangcun de jingji yu shehui (Rural Economy and Society in the Shaan-Gan-Ning Border Region) (Beijing: Renmin chubanshe, 2006), 104–19; and Zhu Hongzhao, Yan’an:Ri chang shenghuo zhong de lishi, 3–24.

43 SPA 15–57, ‘‘Hunyin wenti yu hunyin tiaoli, 1945 (The Issue of Marriage and theMarriage Regulation, 1945),’’ SPA 15–72.

44 According to archival documents, the second betrothal gifts did not exist until the 1940sin many areas. It was a practice formed during the time of inflation. See the Guanzhong DistrictCourt: ‘‘Wei cheng qing mai mai hunyin ruhe chuli (Request Instruction from the High Court onHow to Deal with Purchased Marriages),’’ SPA 15–39.


girl at marriageable age.45 The wedding would then be held promptly. By the timethe family of the first fiance discovered this deception, the girl would already havebeen married for some time and the money from the second family was alreadyspent. The family of the first fiance would file a lawsuit against the girl’s familywhile the second groom’s family also sued the girl’s family for cheating. In therecords of the SGN courts a legal category exists titled ‘‘yi nu liang/duo xu (一女两

许/多许 one girl betrothed to two or more families or two men fighting for onewoman)’’ that reflects such situations.

For example, in 1941 the SGN High Court took a case from the local court ofAnsai County. Two men, Xu Zhiting (徐智庭) and Cao Jingui (曹金贵), sued JingFurong (景福荣) and his stepdaughter, Feng Run’er (封润儿), fighting over whichman would have Run’er as his wife. Run’er’s biological father, Mr. Feng, hadengaged his three-year-old girl to Xu Zhiting in 1929, receiving 24 silver yuan as acaili from the Xu family. However, after Mr. Feng passed away (it is unclearwhen), his wife, Woman Feng-Liu (封刘氏), married Jing Furong, and broughtRun’er into the Jing family; they then moved from Anding County to AnsaiCounty in 1936. It was here that Jing Furong found another match, Cao Jingui, forhis stepdaughter and received 40 yuan for this betrothal. In 1937, when the familyfinances were declining, Jing Furong sent thirteen-year-old Run’er to the Caofamily as a tongyangxi. Two years later a formal wedding was held for Run’er andJingui. When the news of this marriage traveled back to Run’er’s former residencein 1940, the Xu family came to Jing’s family to ask for Run’er. When WomanFeng-Liu acknowledged the original betrothal, the Xus had cause to take Jing andCao to court. The Xu family sued Jing and Cao in Ansai County, asking for Run’erto be returned to the Xu family to marry Zhiting. The local court voided bothmarriage and engagement based on the fact that Run’er had not reached legalmarriageable age. It ruled that once Run’er reached eighteen, the legal age formarriage, she would have right to make a decision to choose her marriage mate.46

Another case, Feng v. Zhang, occurred in 1943 in Huachi County, East GansuRegion. In 1928 Feng Yangui (封彦贵) betrothed his four-year-old daughter,Peng’er (捧儿), to Zhang Jincai’s (张金才) son, Zhang Bo (张柏), receiving 10 yuanas a caili. But in 1942, Feng Yangui refused the Zhangs’ request for a formalwedding, and the Zhang family took Feng to the county office for reneging. Thelocal government, based on the fact that Feng Peng’er ‘‘strongly objected to thisengagement,’’47 voided the betrothal on the basis of the freedom of marriagepolicy.48 After breaking this betrothal, Feng Yangui found another family with amuch higher price, but Zhang Jincai discovered this attempt and sued Feng for


45 In English language ‘‘girls’’ and ‘‘women’’ have a clear distinctive age line. In the cases ofthe Border Region, the distinction between a girl and a woman was decided by her marital status.Although legal marriageable age was set by the 1939 regulation as the age of eighteen, many localfamilies still followed traditional customs by marrying their daughters at age of fourteen orfifteen. Therefore, in the following discussion I use both girls and women to indicate those whoasked for divorce.

47 See the Department of Civil Affairs, the SGN Government, ‘‘Shaan-Gan-Ning bianquhunyin wenti huiji, 1943 (A Compilation of Documents on Marriage Issues, 1943),’’ SPA 4-1-65.

48 Ibid.

46 ‘‘Cao Jingui v. Jing Furong,’’ SPA 15–1293.

198 XIAOPING CONG

marriage-for-selling. This engagement failed. In 1943 Feng eventually acceptedanother offer of 7000 fabi yuan, plus some expensive fabrics and cotton for hisdaughter’s betrothal. However, before the formal wedding and with Peng’er’sconsent, the Zhang family ‘‘kidnapped’’ her for marriage. Peng’er’s father sued theZhang family for kidnapping and requested that the marriage between Peng’er andZhang Bo be voided. This case was appealed at sub-regional court and to PrefectMa Xiwu (马锡五 1898–1962), who approved Peng’er’s choice. This case laterbecame famous because it was cited as an example of ‘‘Ma Xiwu’s way ofjudging’’49 and served as the prototype for a series of cultural products in the1940s and 1950s.

In these cases, the girls’ families and the girls themselves enjoyed governmentsupport. The government policy against arranged and purchased marriage, and thepromotion of ‘‘freedom of marriage,’’ provided a legal basis for scrapping themarriage contract without paying a price. A girl, often accompanied by her father,usually went to the township government (乡政府 xiang zhengfu) to demanddismissal of the original engagement in the name of anti-arranged marriage andfreedom of marriage. Given the continuous inflation of the bride-price, most girls’families had a strong motivation to do so, as the number of cases proves. Also, inmost cases a father needed cooperation from his daughter, since the governmentrequired a clear expression of consent from the girl herself on the specific marriagecase.50

In the cases of annulling an engagement, daughters’ cooperation with theirfathers was critical, since they also received some rewards from this game. Womennormally had no right to own property under the patriarchal system, but oneexception was their own dowries. The early payment on the engagements hadbenefited their fathers and families since the caili were paid with silver yuan andgrain (and in some cases plots of land), but a certain part of the second caili wentdirectly to the girls for their dowries. This was the only chance for a girl to gainproperty and to gain a few ‘‘luxury’’ goods. If she did not grasp this chance shecould end up owning nothing and having no power in her future husband’s family.It is hard to use high moral standards to judge these women’s material demands fortheir marriages and engagements. In an economically underdeveloped area such asthe SGN region, women were the foremost victims of poverty. Given this situation,marriage was the only way to change their existing conditions and to grasp somemeasure of material security for their precarious lives.

RURAL MALES WHO ‘‘LOST BOTH WOMEN AND PROPERTY’’

Theoretically, the regulation that promoted freedom of marriage and prohibitedpurchased marriage benefited both men and women because ideally it allowed menand women to choose each other on the basis of mutual love while eliminating the


49 ‘‘Feng v. Zhang,’’ SPA 15–842; ‘‘Ma Xiwu tongzhi de shenpan fangshi (Comrade MaXiwu’s Way of Judging),’’ Jiefang ri bao (Liberation Daily), March 13, 1944.

50 As it was in the case of Feng v. Zhang, Peng’er’s father brought her to the township officeto express her objection to her previous engagement. Interview with Feng Zhiqin (Peng’er) onJuly 7, 2007.


connection between material gain and marriage. The Communists expected thatyoung men and women, especially young males from poverty-stricken families,would embrace this policy, which was in accord with the CCP’s revolutionaryprinciple of the class line. As the previous section demonstrated, young women andtheir fathers welcomed this policy for reasons totally different from the originalintent. Contrary to the Communists’ expectations, the record shows that youngpoverty-stricken males vigorously opposed this policy51 because breaking anengagement without repayment equal to the original value was not simply amarital dispute, but a financial issue and a question of fairness.

The 1939 marriage regulation failed to address the issue of engagements thateither existed prior to the arrival of Communist power or were carried out privatelybetween families in the SGN Region, or the property relations behind theseengagements. Although the regulation did include certain terms on dividingconnubial property that favored women, it set up these terms on the assumption thatthe property was only held by an existing marital couple, without considering thatproperty transfers between engaged families could last for over a decade. Thus underthe newmarriage practice, male farmers who had paid for their wives had no way towin the game, especially in a time of economic inflation. A family would spend all ofits assets (倾家荡产 qing jia dang chan) to engage a wife for its son, expecting thatthe contract would be honored. However, inflation often caused destitution and theoriginal contract was also lost. This group of farmers described their situation withthe phrase ‘‘losing both woman and property (人财两空/失 ren cai liang kong/shi).’’Due to the widespread inflation of the 1940s, the value of returned caili, even withcompensation, was far below its original value and not enough to be payment for anew wife.52 Moreover, most girls’ families had already spent the money and had noway to pay it back. In some cases the original gift included land; this land had beencultivated by the girls’ families for years and it was a great hardship to return it to thegroom’s families.53 In fact, this situation of ‘‘losing both’’ threatened the verysurvival of this group of poor male farming families.

Statistics collected in 1945 categorized the reasons for abolishing anengagement.54

Among the reasons listed, physical causes (mental illness, sexual impotence, anddeath) made engagements easy to dismiss because they were legitimate reasons inboth local tradition and the revolutionary regulations. Categories eight and ninealso followed the rule that if the fiance’s absence without contact (includingmilitary soldiers) lasted for a certain number of years (generally three to five years),the engagement could be dismissed. Although varied, in the remaining reasons for


51 ‘‘Zenyang jinzhi mai mai hunyin? (How to Stop Purchased Marriages?),’’ SPA 15–40. Thepoorer a boy’s family was the larger amount of caili he had to pay to the girl’s family. Richfamilies would pay much less for a bride. This condition related to the bridal family’s concernabout her future living conditions.

54 The 1944 marriage regulation eventually set up a term to control the practice of affiances;the 1945 data thus separated engagement disputes from divorce disputes.

53 ‘‘Bianqu tuishi shenpan yuan lianxi huiyi fayan jilu, 7 (Collection of Presentations on theLegal Conference, Volume 7),’’ SPA 15–81.

52 ‘‘Bianqu tuishi shenpan yuan lianxi huiyi fayan jilu, 5 (Collection of Presentations on theLegal Conference, Volume 5),’’ SPA 15–80.

200 XIAOPING CONG

requesting the dismissal of an engagement, economic motives dominated. Thereasons of ‘‘one girl betrothed to two families’’ and ‘‘aversion to a poor fiance’’were directly linked to economic motives, while ‘‘instigation of natal family’’involved the natal family demanding more caili or seeking a suitor with a higherbid. The category ‘‘demanding self-determination’’ was much more complicatedbecause it needed to be examined on a case-by-case basis. Many cases indicatedthat girls’ families used this legal rhetoric to conceal their economic motives.

In divorce cases, the property issue was even harder to tackle. The records of theSGN High Court show that in some divorce cases the girl’s family sent the bride tothe groom’s family to fulfill the engagement contract in order to avoid returning caili


55 SGN High Court: ‘‘Shaan-Gan-Ning bianqu hunyin wenti yu hunyin tiaoli (Issue ofMarriage and Marriage Regulation in the SGN Border Region, 1945),’’ SPA 15–72.

TABLE1. Data from Various Counties on the Dismissal of Engagements, 1944.55

Reasons for requestingthe dismissal

Number ofcases

Requested by

men’s side women’sside

1 Instigation of natal family(娘家挑唆 niang jia tiao suo)

3 3

2 One girl betrothed to twofamilies (一女两许 yi nuliang xu)

4 4

3 [Girl] demanding self-determination (要求自主yao qiu zi zhu)

4 4

4 [Fiance has] mental problems(神经病 shen jing bing)

2 2

5 [Fiance] sexually impotent(不能人道 bu neng ren dao)

1 1

6 [Fiance] lied about [his] age(隐瞒年龄 yin man nianling)

2 2

7 [Girl’s] aversion to a poorfiance (嫌贫 xian pen)

2 2

8 Absent soldier in the Anti-Japanese War withoutcontact (抗日军人无信 kangRi junren wu xin)

3 3

9 Absent fiance withoutcontact (外出无信 waichu wu xin)

1 1

10 Fiance deceased (未婚夫死wei hun fu si)

1 1

Total 23 23


or paying compensation, but a few days after the wedding, when the bride returnedto her natal family for a short break as required by local custom, her family wouldrefuse to return her to the husband’s family.56 In some cases the girl’s family quicklyengaged the bride to another family. When the husband’s family demanded the wifeback, the girl’s family would immediately file for divorce. Once the governmentgranted the divorce, the girl’s family kept most of the caili, and only a small portionwas returned to the groom’s family. Also, in many cases, if a girl did not meet thestatutory marriage age of eighteen, the local government simply voided the marriageor engagement but struggled to deal with the issue of caili.57

A 1942 divorce case in Yan’an illustrates this problem. Chen Zhifang (陈志芳,wife) married Li Hancheng (李汉成, husband) at the age of fourteen, and the twodid not get along. Two years later, Chen filed for a divorce, but Li stronglyopposed it. In court Li explained that in order to marry Chen he had sold the onlyplot of land he owned and became impecunious; Chen wanted a divorce withoutpaying back the money. Li used a phrase prevalent in the region to describe hissituation: he would ‘‘lose both the woman (wife) and the money.’’ When the courtdelivered a divorce verdict and asked Chen to return the money from her betrothalto Li, Chen replied that ‘‘Only if the government law stipulates the return ofproperty at divorce will I do it.’’58 The SGN government had no law for returningcaili in 1942, and would not until 1944. In this system scrapping a betrothalcontract or requesting a divorce for material motives fell under a loophole in thelaw because the local government had no legal basis for ruling on the return ofproperty transferred during the period of engagement.

Due to the fact that disputes over broken engagements composed a major part ofmarriage disputes, the marriage regulation was revised in 1944. The 1944regulation recognized the legal status of engagements and required the return ofcaili at its original value after breaking an engagement.59 Under this term, manylocal authorities ordered the girl’s family to pay an amount of grain (赔米 pei mi)to the boy’s family to compensate for losses caused by inflation. In practice,compensation was difficult to impose and in most cases very little was returned tothe groom-to-be’s family. According to 1945 statistics, among a total of seventy-nine cases requesting engagement dismissal, seven engagements were dismissedwithout the return of caili, fifty-nine were dismissed with only the original cailireturned without considering the influence of inflation, and three were dismissedwith returned caili and grain payment as compensation, while ten cases were notallowed to be dismissed.60


57 For example, the case of ‘‘Zuo Run v. Wang Yinsuo.’’ See Cong Xiaoping, ‘‘Zuo Run suWang Yinsuo: 20 shiji 40 niandai Shaan-Gan-Ning Bianqu de funu, hunyin yu guojia jiangou(Zuo Run v. Wang Yinsuo: Women, Marriage and State-Building in the 1940s’ Shaan-Gan-NingBorder Region),’’ in Kaifang shidai (Open Times), 10 (October 2009), 62–79.

58 Chen v. Li, SPA 15–1340.59 ‘‘Xiu zheng Shaan Gan Ning bianqu hunyin zanxing tiaoli (A Revised Provisional

Regulation on Marriage in the Shaan-Gan-Ning Border Region),’’ Shaan-Gan-Ning bianqu funuyundong wenxian ziliao xuan bian, 192–94.

56 ‘‘Zhang Weijin v. Bai Fenglin,’’ SPA 15–1332.

60 SGN High Court: ‘‘Shaan-Gan-Ning bianqu hunyin wenti yu tiaoli,’’ SPA 15–72.

202 XIAOPING CONG

In reality, the requirement for compensation created more problems than itsolved. First, many rural families were not willing to accept the return of caili andcompensation as a solution because even with the compensation, it was still notenough for a family to pay for a new wife for its son, especially in a time of rapidinflation. Second, this practice invited even more protest than before, becausecomplaints now came from both families.61 Third, due to the fact that the rate ofinflation varied by region, the amount of grain to be paid to the groom’s familywas difficult to determine, especially since some caili included labor services hardto calculate. In the negotiation process, government officials or court workers hadto serve as mediators, and compensation amounts were included in the legalsettlements. Fourth, when certain girls’ families refused to pay compensation,government officials had to carry out the implementation of the verdict, but it wasdifficult for the short-handed government of the time. In some cases, girls’ fatherssimply fled the government’s jurisdiction to avoid paying the compensation.Moreover, serving as mediators put government officials in an awkward position.In theory, the government prohibited purchased marriage, but in practice, theywere helping the two sides of the dispute set the price for a marriage/betrothal.This practice led the villagers to believe that the government allowed purchasedmarriage and thus worked against the ending of arranged and purchasedmarriages.62 After 1944, the cases of buying and selling marriages increasedinstead of decreased for this reason.63 On the other hand, if the government didnot rule for compensation it would encourage more girls’ families to abortengagements for material profit while being unfair to those who paid for marriage.Finally, once the 1944 regulation established the terms of compensation, somecounty courts sought a quick solution by approving all requests for engagementdismissal and divorce with the female side paying the compensation regardless ofthe reason.64 This practice also caused great concern for the High Court.

In 1946, to get out of this dilemma and to avoid malpractice of the law, the HighCourt called a halt to the practice of ‘‘repaying grains’’ compensation.65

Correspondingly, it issued a revision to the 1944 regulation that requiredreturning the caili after breaking an engagement.66 In the new 1946 regulation, theHigh Court composed a lengthy explanation which provided a practical definitionof buying/selling marriage and made a distinction between a caili as the localcustom of gift-giving and token for marriage consent from a caili as a buying/selling marriage. The explanation stated that gift-giving caili ought to be returnedto fiance’s family after the engagement was aborted. The explanation also defineda purchased marriage by a caili amount so large that it would make a difference to


61 Ibid.62 SGN High Court: ‘‘Wei chuli hunyin anjian zhong bu de zai you nu fang pei mi

(Instruction on Marriage Cases: It Should No Longer Make the Woman’s Side Repay Grains),’’63 SGN High Court: ‘‘Shaan-Gan-Ning bianqu hunyin wenti yu hunyin tiaoli,’’ SPA 15–72.64 ‘‘Wubao xian sifa chu minshi panjueshu (A Collection of Civil Adjudication of Wubao

County Court),’’ SPA 15–365.65 SGN High Court: ‘‘Shaan-Gan-Ning bianqu hunyin wenti yu hunyin tiaoli,’’ SPA 15–72.66 ‘‘Shaan-Gan-Ning Bianqu hunyin zanxing tiaoli (The Marriage Regulation of the SGN

Border Region, 1946),’’ in Shaan-Gan-Ning bianqu funu yundong wenxian ziliao xuan bian (xubian) (A Documentary Collection on the SGN Women’s Movement, Continuation) (Xi’an:Shaanxi Provincial Women’s Federation [compiled and printed], 1985), 422–24.


a family’s financial condition. Once a purchased marriage was identified, the localauthority could confiscate the major part of the caili for the commonweal and onlya small part would be returned to the groom’s family.67 The intention of thisregulation and its explanation meant to legitimate a local marriage custom whilerestricting the mercenary marriages that benefited girls’ parents.

FROM ‘‘FREEDOM OF MARRIAGE’’ TO ‘‘SELF-DETERMINED MARRIAGE’’

The argument that promoting ‘‘hunyin ziyou’’ would benefit women was onlypartially true in these cases. It did indeed benefit women in some ways, but not inthe way that policymakers had originally intended. Legal documents indicate thatthe great majority of engagement dismissals and divorce cases were indeedproposed by the woman’s side (女方 nu fang; see above table), a phenomenon thatcould be easily read as a triumph of women’s demands for free marriage andwomen’s resistance to arranged marriages.

In fact, the term ‘‘nu fang’’ in Chinese is a fully contextualized concept. In thereality of the 1940s’ SGN region, most women’s families or parents—notindividual women themselves—represented nu fang. Though in some rare caseswomen represented themselves on paper, they could also have been influenced bytheir families and/or third parties. When a man, especially a father, represented hisdaughter as the ‘‘woman’s side,’’ he, as head of the family, would put the family’ssurvival ahead of a daughter’s happiness. In the best-case scenario, some women’sfamilies hoped to gain more money to either improve family conditions or pay offdebts. This was the situation in the 1946 case of Xu Shengyou v. Ma Fugui, inwhich Xu’s recently widowed daughter was sold by her father for more than onemillion bianbi yuan in order to pay the family debt.68

In the worst-case scenario, a father, brother, or influential third party tried to sella woman to support his bad habits. Since the late Qing up to the 1950s, many ruralChinese men had fallen into opium-smoking or gambling. In addition, ruralcommunities also had groups of idlers who did not want to engage in productivework in the fields.69 These idlers or rogues were always looking for theopportunity to make money without laboring, such as in the case of Zuo Run v.Wang Yinsuo.70 When this group of males acted in the name of ‘‘nu fang,’’ the factthat the ‘‘women’s side’’ officially proposed divorce or broke up an arrangedengagement became a less accurate indicator of women’s liberation.

Under this situation, the actual beneficiaries of this policy were the families ofthe girls, especially the father and/or an influential third party (mostly women’smale relatives). It did not change the structure of patriarchal domination and didnot empower women; rather, it allowed property to be moved from grooms’


67 SGN High Court: ‘‘Shaan-Gan-Ning bianqu hunyin tiaoli jieshi (An Explanation of theSGN Marriage Regulation, 1945),’’ SPA 15–72. This interpretation was a document prepared bythe High Court at the 1945 legal conference of the Border Region for the forthcoming 1946regulation.

68 SPA 15–1574.69 Discussed in the case of Wang Mingxuan v. Liu Zhiban (SPA 15–29) and the divorce case

of Chen Yu (SPA 15–842).70 Cong Xiaoping, ‘‘Zuo Run su Wang Yinsuo.’’

204 XIAOPING CONG

families to brides’ families. Even worse, this policy in fact reinforced patriarchalcontrol over girls/women by encouraging them to collaborate with their fathers inorder to receive material gain while fathers/third parties used these gains tomanipulate the girls/women. This policy caused new injustices rather thanliberation of women because it reinforced fathers’ control over their daughters.

The consequences of this policy were pointed out by a contemporary legalpractitioner, Dang Lingquan (党灵泉), who in 1946 wrote to the chief judge of theSGN High Court, Ma Xiwu, regarding the issue of buying/selling marriage. In theletter, he described some cases he had dealt with that were very similar to thosementioned above. One case he detailed involved a father who betrothed hisdaughter and received caili, then urged his daughter to go to the government forher ‘‘freedom.’’ Dang said that he had suspicions about the girl’s motive for endingthe engagement and tried to persuade her to not listen to her father regardingparticipation in the practice of purchased marriage, but the girl swore that it wasshe who wanted her freedom. He then had no choice but to void the engagement;the father immediately set up another engagement for a much higher price. Dangwas very disappointed, stating that the so-called ‘‘freedom of marriage’’ was nottruly free, but only ‘‘free’’ superficially. The daughter only sought to break theengagement because her father, seeking more money, led her to do so.71

In fact, the term ‘‘freedom of marriage’’ also proved to be misleading. Severaldecades ago, Paul Cohen pointed out that in the Chinese language the term‘‘liberty/freedom’’ (自由 ziyou) ‘‘has connotation of license or lawlessness.’’72

Especially when it is taken out of its previous intellectual and urban context andput into the SGN social and cultural setting, this term can be understood as ‘‘doing‘whatever’ about a marriage.’’ In the implementation of ‘‘hunyin ziyou,’’ theprerequisite is the existence of an individual wishing to exercise his or her freedom,which was not the case in this region. Due to the fact that marriage in the BorderRegion was conducted as a family matter and the term ‘‘hunyin ziyou’’ did notclearly indicate whose freedom was at stake, fathers customarily acted in the nameof freedom and benefited from it amid economic inflation. It was thisunderstanding of ‘‘ziyou’’ that caused tremendous problems in the legal practiceof dealing with marriage disputes in which farmers, mostly girls’ fathers or thewomen themselves, argued with local officials and asked for their ‘‘ziyou.’’73 Thelegal documents indicate that the High Court and local courts frequently tried toclarify the term by stressing that ‘‘ziyou’’ did not mean doing anything withoutrestraint and that ‘‘a freedom out of law is not real freedom (出乎法律之外之自

由，不能认为真正之自由 chu hu falu zhi wai zhi ziyou, bu neng renwei zhenzhengzhi ziyou).’’74 We can see the cultural differences underlying the misunderstandingof the term.


71 Dang Lingquan, ‘‘Guanyu sifa gongzuo gei Ma yuanzhang de yi feng xin (A Letter toChief-judge Ma Regarding Some Legal Cases),’’ SPA 15–40.

72 Paul A. Cohen, Discovering History in China: American Historical Writing on the RecentChinese Past (New York: Columbia University Press, 1984), 14.

73 Cong, ‘‘Zuo Run su Wang Yinsuo,’’ 62–79.74 ‘‘Sun Shanwen v. Wang Shenggui,’’ SPA 15–1495; ‘‘Lian Shenghai v. He Xianglin,’’ SPA

15–1407.


Beginning in 1942, government cadres and judges began to realize theseproblems, though the political rhetoric showed only a slight change at the time. By1943, the SGN government was overwhelmed with complaints from villagers,local cadres, and local legal practitioners,75 which led to a revised regulationpromulgated in 1944 and again in 1946. In both marriage regulations, this clausewas changed to ‘‘on the principle of one’s self-willingness (依自愿为原则 yi ziyuanwei yuanze).’’76 In English there seems little difference between ziyou yizhi (自由

意志 free will) and ziyuan (自愿 self-willingness), but in Chinese the formerimplies a much more open possibility, while the latter signifies a willingnesstoward a more specific action by the actor self, thus narrowing the possibilityhinted at by the phrase ‘‘hunyin ziyou.’’ This term also implies that the focus ofaction was on a specific actor, while ‘‘freedom of marriage’’ did not give a clearindication.

There were corresponding changes in the legal practice. From 1942 on, manycourt documents frequently used the term zizhu (自主 self-determination) as theprinciple for solving marriage disputes.77 The phrase ‘‘zizhu’’ underscoredwomen’s decisions concerning the engagement and which man they would liketo be with if there was any dispute among two or more families. More and morelegal workers used zizhu instead of ziyou and ‘‘emotional relations’’ as their basisfor settlement. By developing an understanding of the certain autonomy thatwomen enjoyed under the patriarchal system and their demands for making thedecisions about their marriages, the courts tried to break down the father-daughteralliance and win women over to their side. Correspondingly, a changing legalstrategy was adopted that was intended to help women in marriage disputes. Inthose cases in which one girl was betrothed to two or three families, local legalworkers would first question the girl/woman in a separate room for investigation.Free from the gazes of her father, husband, or any third party, a girl/woman wasoften more willing to express her true wishes about which man she wanted to bewith. Legal records of the SGN High Court show a broad implementation of thisstrategy in courts.

The case Gu v. Cai and Bai exemplified this practice. Woman Bai (白氏 Bai shi)was engaged to Gu Jiayou (顾加优) in 1931 and soon became a tongyangxi of theGu family. After fifteen-year-old Gu Jiayou left home as a migrant worker in 1935,his older brother engaged Woman Bai to Cai Mingqi (蔡明琪) for 50 silver yuan,and the wedding was held in 1939. One day in 1941 on the streets of the DingbianCounty seat, Woman Bai ran into Gu Jiayou, who now was a revolutionary soldierin the local military unit. Woman Bai initiated a greeting by asking if Gurecognized her and still wanted her. When Gu responded affirmatively and thenbrought her to the local government office to register for marriage, this attemptwas prevented by the government official. A few days later the Cais heard the news


75 ‘‘Hunyin wenti cailiao (Materials on the Problems of Marriages),’’ SPA 4–66.76 ‘‘Xiu zheng Shaan-Gan-Ning bianqu hunyin zanxing tiaoli, 1944 (Revised Provisional

Marriage Regulation of SGN, 1944),’’ Shaan-Gan-Ning bianqu funu yundong wenxian ziliaoxuan bian, 192–94.

77 SGN High Court, ‘‘Panjueshu jicheng,’’ SPA 15–29.

206 XIAOPING CONG

and came to fight for Bai; her case thus became a legal dispute between two menover a woman. Moreover, this case almost caused a military revolt in which Guand his fellow soldiers, led by the unit officer, besieged the local government officeasking for a favorable ruling. The petition was even sent up to Gao Gang (高岗

1905–1954), the then local political and military leader, and Lin Boqu (林伯渠

1886–1960), the chair of the Legal Committee of the SGN Government.78

However, after stirring up all these troubles, when the court asked Woman Baiindividually which man she wanted to be with, Bai decided to return to CaiMingqi, regardless of Gu’s wishes. Thus the court ruled according to Bai’s decisionand the case was closed.79 The aforementioned two cases of ‘‘one girl/womanbetrothed to two families’’ also followed the same principle and used the samecourt technique. By practicing self-determination, legal practitioners and govern-ment officials hoped to gradually exclude the influence and motive of parents orthird parties on girls/women regarding their marriage decisions, and thus respectwomen’s choices about their own marriages.

In divorce cases, the High Court also recognized that both material motives andparental domination complicated the issues at hand. In 1942, the High Courtinstructed the county courts deliberating on divorce cases that they ‘‘should not applythe term of freedom of marriage mechanically (不能机械的搬用婚姻自由原则 buneng jixie de ban yong hunyin ziyou yuanze).’’80 Therefore, from 1943 on variouslocal courts and the High Court tried to understand the motivation behind divorcesby putting them into various categories. Physical and mental disabilities, a long-timeabsent husband, and family abuse were legitimate conditions for approving adivorce, but ‘‘incompatibility of emotional relations’’ required much more detailedinformation and a court’s deliberation. At the same time, the courts also listed otherconditions that were not described in the 1939 regulation, such as ‘‘a [wife’s] aversionto her poor husband and preference for a richer [suitor] (嫌贫爱富 xian pin ai fu),’’and ‘‘[parents’/third-party] instigation (挑/教唆 tiao/jiao suo).’’81

In a corresponding discussion among local courts in 1943, the judges reached aconsensus on the principles for approval and rejection of divorce cases in additionto those listed in the 1939 regulation. They agreed that a girl’s/woman’s requestfor divorce must be ruled out if it was instigated by her parents. A divorcemotivated by aversion to a poor husband and/or her parents’ instigation shouldnot be allowed, while a divorce request based on proven family violence should begranted.82 In order to detect the true reasons for a divorce and the real problems ina marriage, the judges had to talk to the woman face-to-face during investigationsand deal with each divorce on a case-by-case basis by analyzing the motive. Indoing so, they tried to exclude parental and third-party interests from the divorce.

On the other hand, legal practitioners and Communist cadres increasinglyrealized that a divorce was not a simple solution for women in the region. After a


78 ‘‘Bai Zhimin zhi Gao Gang han (Bai Zhimin’s Letter to Gao Gang),’’ SPA 4-2-170.79 ‘‘Gu v. Cai and Bai,’’ SPA 15–1293.80 High Court: ‘‘Zhishi xin 3 hao (Instructive Letter Number 3),’’ SPA 15–33.81 ‘‘Hunyin wenti yu hunyin tiaoli,’’ SPA 15–72.82 ‘‘Ge xian taolun chuli lihun anjian jueding banfa ji hunyin zhengce, 1943 (County Courts

Discussion on Dealing with Divorce Cases and Policy on Marriage, 1943),’’ SPA 15–43.


divorce, even if it came about because of her husband’s abuse, the girl/womanwould immediately fall back into the hands of her parents and become the objectfor the next arranged marriage for a higher price. Ultimately, for true freedom ofmarriage, the state had to help women win economic independence and improvetheir position in the family. In February 1943, the CCP Central Party Committeeinstructed that women’s work should be redirected to organizing women to engagein economic productivity.83 Around the March 8 International Women’s Day thatyear, Cai Chang (蔡畅 1900–1990), one of the important women leaders inYan’an, published an article responding to the Central Committee’s call. Itemphasized the importance of women winning their economic independence andencouraged women to be involved in productive work in handcrafts andagriculture.84 Through working in the fields, the party’s female workers believed,women would become an important part of the labor force and would earn theirindependence so that they would not need to depend on men to provide their foodand labor, which would eventually change the power relations in the family.85 Thistopic, however, goes beyond the focus of this article.

CONCLUSION

The 1940s’ marriage reform was just one stage of the transformation of Chinesesociety and the realization of the goal of gender equality in the twentieth century.After the radical 1939 regulation was put into practice, the CCP becameincreasingly aware of the conditions under which the patriarchal family continuedto dominate marriage practices. Parents twisted the sketchy policy to their benefitrather than that of their daughters. In legal practice, government officialseventually recognized that they needed the cooperation of women in order tocarry out their program of marriage reform and that first they needed to breakdown the father-daughter alliance and win over the women.

Therefore, the idea of marriage reform in the SGN gradually shifted away fromits focus on calling for freedom of marriage and toward the granting of power towomen in marriage decisions. The CCP introduced a new principle of ‘‘self-determination’’ into the legal process. In this shift, the power to choose one’smarriage mate gradually moved from the parents into the hands of young women,as well as young men. This change had a profound influence that extended tonational legal practices in the post-1949 era, and eventually shaped the ‘‘right ofself-determination in marriage (婚姻自主权 hunyin zizhu quan)’’ in the PRC CivilCode in 1986. However, freedom of marriage remained a general and value-oriented principle, while ‘‘self-determination’’ is the de facto right of individuals in


83 ‘‘Zhongguo Gongchandang zhongyang weiyuanhui guanyu kang Ri genjudi muqian funugonzuo fangzhen de jueding (The Central Committee of the Chinese Communist Party’s Decisionon the Recent Development of Women’s Work in Various Revolutionary Base Areas),’’ Shaan-Gan-Ning bianqu funu yundong wenxian ziliao xuan bian, 162–64.

84 Cai Chang, ‘‘Yingjie funu gongzuo de xin fangxiang (Facing the New Direction ofWomen’s Work),’’ Shaan-Gan-Ning bianqu funu yundong wenxian ziliao xuan bian, 167–71.

85 Regarding women in the Great Production Campaign for their economic independence,see Stranahan, Yan’an Women and the Communist Party, 58–86.

208 XIAOPING CONG

marriage practice.86 After more than four decades of struggle and change, theurban-born and imported ideal of ‘‘freedom of marriage’’ and the local principlebased on legal practices in rural communities of ‘‘self-determined marriage’’eventually reached a reconciliation that has changed marriage customs andpractices in twentieth-century China.

ACKNOWLEDGMENTS

My deepest gratitude to the Fulbright Research Scholar Grant and NEH-funded ACLS/ARHC Grant of 2008–2009 for sponsoring archival work on this research project. An earlyversion of this article was presented under another title at the International Workshop on‘‘Across and Beyond: The Regeneration of May Fourth Scholarship from Transnational andCross-Disciplinary Perspectives,’’ organized by the Rice University Chao Center for AsianStudies, Rice University (Houston, March 18–20, 2010). I am very grateful to all commentsmade by the participants of the workshop, especially those of Drs. Michela Duranti andAnne Chao, and Professors Tani Barlow, Wang Hui, Nanxiu Qian, Tim Weston, RobertCulp, and other attendants. My special gratitude to Professors Ben Elman, Gail Hershatter,Richard Smith, and John Hart who have read my draft carefully and offered me veryvaluable feedback. This article was also presented to a reading group in my department atUniversity of Houston in which Professors Landon Storrs and Natalia Milanesio also madevery important comments on an early version. I appreciate their help and support. I alsowould like to express my appreciation to two anonymous reviewers whose importantcomments and insightful suggestions for revision made this article much stronger thanbefore.

NOTES ON CONTRIBUTORS

Xiaoping Cong is an Associate Professor in the Department of History at University ofHouston. She is the author of a monograph, Teachers’ Schools and the Making of theModern Chinese Nation-State, 1897–1937 (Toronto: University of British Columbia Press,2007), and other articles published in both Chinese and English journals.Correspondence to: Xiaoping Cong. Email: [email protected]


86 ‘‘Hunyin ziyou yu hunyin zizhu quan de qubie (The Difference Between Freedom ofMarriage and the Right of Self-Determination),’’ Hunyin falu wang, www.lihun99.com/jh/hyzzq/1007011263.html (accessed August 8, 2011).


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