[author]Lai Junnan

[content]

Do Kinship Ties Necessarily “Distort” Property Rights? Theoretical Reflections Based on Qing Litigation Archives

Lai Junnan

Abstract：What happens when private property rights are deeply embedded in non-economic relationships? To answer this question requires case-based inquiry in concrete times and places, and along legal, social, and economic dimensions. Litigation over property among kin in the Qing dynasty offers an important body of material for such inquiry. Confucian ideology was indeed unfavorable to clear and equal property rights within kin groups. Yet both Qing official legislation and popular custom made concessions to the trend toward property-based individualism. In Nanbu County (Nanbu xian), Sichuan, during the Daoguang (1820–1850) and Xianfeng (1851–1861) reigns, there were frequent lawsuits over property among relatives, including not a few cases in which juniors sued elders. In handling such cases, the magistrate essentially treated them as no different from other minor disputes: in principle he accepted them, carried out investigations and hall hearings, weighed the interests of all parties with reference to statutes, custom, and contracts, and attempted relatively precise balancing. Confucian language deployed by some litigants had little impact on his neutrality. Only in a small number of cases did the magistrate, out of qin qin (“affection for kin”) or compassion for weak parties, grant lenient treatment to those who in principle should have borne liability.

Drawing on Karl Polanyi and later work in economic sociology, one may say that embeddedness can both promote markets and impose limits upon them. Yet in practice the Qing state was relatively tolerant of the former aspect and more vigilant toward the latter.

Keywords: Qing dynasty; property rights; embeddedness; law

Introduction

In his classic The Great Transformation, Karl Polanyi argued that for most of human history economic activity was “embedded” in social relations, so that “the distribution of material goods was regulated by noneconomic motives.” In his view, economic phenomena—property relations included—were more or less shaped and “distorted” by the non-economic institutions in which they were embedded, and thus could not operate smoothly according to purely economic logic.

The notion of embeddedness is highly suggestive for thinking about property rights and markets in imperial China. At least in the Qing, a great many property arrangements and transactions took place among kin or quasi-kin; “personalized transactions” were a normal feature of the popular economy. Recent Chinese scholarship has consciously adapted the concept of embeddedness to emphasize a basic historical insight: property relations in the Qing did not exist in a vacuum but were often deeply embedded in social relations and institutions (especially the lineage system), which in turn affected economic relations.

On the specific ways in which embeddedness affected property rights, however, these scholars have not followed Polanyi in drawing a single, resolute conclusion that embeddedness was simply a force suppressing private property rights.

This article combines perspectives from socio-economic history and legal history to examine the embeddedness of property rights in late imperial China, starting from the question: Does embeddedness necessarily distort property rights? It focuses on property rights embedded in kinship—in everyday life and in legal practice—and seeks to offer multi-layered analysis and theoretical reflection.

More concretely, the article draws on the institutional framework of the Qing and on records of lawsuits over property among kin in the archives of Nanbu County, Sichuan. It aims to show how property rights were embedded in kin relations, the disputes that such embedded relations generated and how they were resolved, how litigants used discourses linked to embeddedness, and how grassroots judicial authorities viewed these disputes. On this basis, the article enters into dialogue with Polanyi and related work in economic sociology, and uses more precise language to reconsider the relationship between embeddedness, markets, and law in an early modern context.

The article argues that the impact of embeddedness on private property and markets in the Qing was more complex than in Polanyi’s original formulation, and that legal practice could channel the effects of embeddedness in particular directions.

1 Institutional Resources and Case Overview

1.1. How did Qing institutions treat property embedded in kinship?

Here “institution” does not mean official written law in the narrow sense, but “the rules of the game in a society—in other words, the humanly devised constraints that shape human interaction.” Any factor that helps to generate relatively stable constraints on human behavior in practice can be treated as part of the institutional environment. Ideology, official legislation, and popular custom could all serve as normative resources in handling property disputes among kin in the Qing.

1.1.1Confucian ideals of kinship and property

Confucian thought formed the fundamental ideological background to property relations among kin in the Qing. One of its core principles, as the starting point of Confucian ethics, was qin qin—showing affection for one’s kin, radiating outward in graded fashion from those closest to those more distant. In the Confucian ideal, members of a patrilineal family or lineage—defined by the mourning grades in the Yili, encompassing nine generations in the direct line and four collateral lines—were to live in harmony and mutual assistance.

In property terms, this meant that kin were to live together and share property, or at least avoid drawing overly sharp boundaries among themselves. When one party encountered hardship, others were expected to provide material help. Property disputes among kin, above all, were not supposed to occur. In the Qing, many officials regarded contests over inheritance among relatives as a social vice and sometimes sought strictly to prohibit them. As Li Fu wrote, relatives who fought over wealth were “both discourteous and unloving; is this merely meanness? The fundamental human relations are already in ruins.” He endorsed the view that “local officials should severely punish and strictly control such behavior, in order to restore simple and honest customs.”

From this perspective, once a lawsuit over property arose among kin, the magistrate was not supposed to decide the case strictly on the basis of law and contract in order to produce a clear ruling. Instead he was to “proceed only from the ethics of human nature, using every means of persuasion, until both sides are moved to remorse and clasp each other in tears.” Local gazetteers record many instances in which officials successfully persuaded contending brothers or other relatives to reconcile and withdraw their suits. Officials also sometimes wrote didactic songs urging brothers to stop fighting over property—songs that included lines such as “Do not boil the flesh of the same root; lest you wound your parents’ hearts”—in the hope of morally transforming the parties so that they would voluntarily give up their claims.

Beyond qin qin, Confucianism emphasized zun zun—“revering the superior”—especially elders. In the mourning rules of the Yili, mourning obligations for seniors are heavier than those for juniors; this arrangement is plainly intended to highlight the respect owed by juniors to the authority of elders and thus to maintain a hierarchical order within the family. In the Confucian conception of the unity of family and state, the hierarchy among elders and juniors within the family was the foundation of the ruler–subject relationship in the political realm and played an indispensable role in sustaining political order. Zun zun therefore became a central spirit of the Confucianization of law and politics in imperial China.

According to zun zun, officials faced with inheritance disputes among kin were to forbid juniors from bringing accusations against their elders. In actual adjudication, they were to favor those higher in the patriarchal hierarchy, so as to uphold the authority of elders. On this point, Hai Rui’s well-known formulation is worth citing: in handling disputes over inheritance, “better to wrong the younger brother than the elder, better to wrong nephews and cousins than uncles.” In this mode of adjudication, precise and impartial demarcation of property rights was not a value to be pursued; property rights were to yield to status.

At the level of ideology, then, both qin qin and zun zun were “unfriendly” to stable, clear, and depersonalized property relations. Qin qin sought fundamentally to prevent the emergence of property disputes among kin by urging harmony and shared property; zun zun suppressed the property claims of juniors in order to preserve the prerogatives of elders in the patrilineal family.

1.12. Provisions of the Qing Code on property within kinship

In matters of household and kin property, Qing legislation had both an ideological and a pragmatic dimension. On the side of qin qin, the Great Qing Code inherited from the Tang a provision reducing punishment for theft among kin. Because the law recognized a mutual obligation of assistance among relatives, it treated property offenses among them as less culpable.

On the side of zun zun, the statute on “Offences Against Status and Righteousness” (ganming fanyi) forbade descendants from bringing complaints against virtually all elders within the mourning grades, while giving almost unfettered latitude to elders to accuse juniors—even to the point of allowing them knowingly to file false complaints. Grandparents and parents who claimed that a descendant had disobeyed their instructions or failed in support (without offering proof) could request that the authorities administer one hundred heavy blows. They could also ask that a child who violated the code be exiled as a convict soldier to malarial border regions. In terms of the right to complain, elders thus enjoyed a massive institutional advantage.

Other provisions of the Qing Code concerning property within kinship also reflected Confucian requirements. To ensure the continuation of the patrilineal line and its internal hierarchy, the code set out detailed rules for adopting heirs in childless households and for inheritance, and prohibited the adoption of heirs from different surnames. To preserve the control of household heads over property in undivided families, the code prescribed caning and flogging for juniors who made unauthorized use of household property. It also imposed harsh penalties, ranging from flogging to penal servitude and exile, on descendants who sold sacrificial land, righteous fields, or clan property dedicated to ancestral worship.

At the same time, confronted with an increasingly mature property and market order, the code did not cling rigidly to ideology but made certain concessions. The famous statute on “separate registration of property” (bie ji yi cai) nominally followed the strict prohibition, inherited from the Tang, against sons registering separate households and property while grandparents or parents were still alive or during the mourning period after their deaths. But the effective law lay in the official commentary and substatutes. The commentary stipulated that the statute could be applied only if grandparents, parents, or an elder within the mourning grades brought a complaint, and that it did not apply if a division of property during mourning was carried out according to the deceased’s last wishes. A substatute stated explicitly: “If the parents permit division, it is allowed.”

The code strictly protected the equal shares of sons in the family property and emphasized that division was to follow a rule of equal partition among sons; even illegitimate sons were entitled to half a share. Elders who showed favoritism in the division of property faced caning or flogging. As for the right of close kin to pre-empt land sales—an institution that had entered the law in the Five Dynasties—the Qing Code declined to endorse it and instead criticized it in a substatute, on the grounds that too many people, relying on the notion of “closest kin and neighbors first,” used it as a pretext to coerce sellers into accepting low prices, thereby generating many disputes.

These provisions show that in the social world envisioned by the Qing Code, the ideal of large, undivided households had in practice to give way to a growing property-based individualism.

In short, on the one hand Qing legislation, represented by the Great Qing Code, inherited the fruits of the Confucianization of law and used the spirits of qin qin and zun zun to curb property-based individualism. On the other hand, it was compelled to compromise with the property practices of everyday life by recognizing the co-ownership rights of sons and the widespread custom of dividing family property among brothers while parents were still alive.

1.1.3. Kinship property in popular custom

Popular customs concerning property within kinship in the Qing also reflected a complex interplay between ethical logic and property logic.

First, the division of households and equal partition of property among sons (zhuzi junfen) both expressed patriarchal affection and ethics and meshed with a growing sense of private property. As a rule, equal partition met the need of agrarian patriarchal families to maintain blood ties and lineage continuity. As private property consciousness matured, equal shares gradually came to be treated as a rigid right that sons could expect and that could not be infringed; even illegitimate sons could expect similar treatment. The expectation and right of sons to a share of family property grew strong enough to detach themselves from actual affective ties and paternal will: even a son driven from the household for disobedience could return after his parents’ deaths and demand a share of the estate.

Second, the practice of reserving “old-age fields” for parents at the time of division reflected both a minimal requirement of filial piety and a strong logic of demarcating private property. Classical Confucian norms expected sons to support their parents directly, but providing them with land for their old age was an acceptable variant. The existence of such fields, however, indicated a tendency to “keep clear accounts” and draw property lines even between parents and children. Each son had an equal share in the reserved fields; upon the parents’ death a new round of equal partition would convert them into private property of the sons.

Finally, within the lineage, the private property of constituent nuclear families or “branches” (fang) was not in practice subject to arbitrary interference by lineage heads or elders. Earlier scholarship once suggested that property within the lineage was subordinate to hierarchical status and ritual title, but more recent research shows that the property rights of these basic family units enjoyed substantial protection in custom. Clan leaders could not intervene at will in the private property of a small family; any action that affected such property (for example, building an ancestral hall) required joint deliberation and a contract.

In short, the institutional resources available to regulate property relations among kin and resolve related disputes in the Qing reveal a complicated interweaving of blood-based ethics and private property. Although orthodox Confucian ideology was not friendly to property-based individualism, Qing legislation and popular custom both diverged from pure Confucian principles and instead granted significant scope to private property within kinship. Against this background, when disputes and even lawsuits over property arose among relatives, how did county magistrates evaluate and adjust these embedded property relations in practice?

1.2. Kinship property litigation in Nanbu County, Sichuan, under Daoguang and Xianfeng

The case analysis in this article is based on sixty lawsuits over property among kin identified in the Archives of the Nanbu County Yamen in Qing Sichuan for the Daoguang (1820–1850) and Xianfeng (1851–1861) reigns. Because of limitations in the sample and in method, the numbers and percentages cited below do not attain the precision required for strict quantitative analysis, but they are at least heuristically suggestive.

In terms of hierarchy between the parties, more than half of the cases occurred among same-generation kin, but a fair number involved different generations, including a nontrivial number of suits by juniors against elders. In thirty-three cases, the parties were of the same generation. Such suits were most common because the parties were not separated by strict status hierarchies, only by relatively shallow differences in seniority; disputes of this kind were difficult to resolve within the framework of ritual hierarchy and thus more likely to reach the courtroom when neither side would yield.

Seventeen cases involved clear hierarchical differences between the parties, a smaller number than suits among same-generation kin. This may indicate that ritual hierarchy did resolve some disputes within the lineage, especially by inducing juniors to submit to elders’ authority. But its practical effect should not be overestimated, since many disputes nonetheless reached the yamen. Among these seventeen cases, seven involved suits filed by juniors against elders—clearly at odds with the picture in some literati casebooks, which present grassroots litigation as consisting almost entirely of suits by superiors against inferiors, with juniors rarely, if ever, suing their elders.

In fact, in property relations and disputes among kin, hierarchical status differences were often not crucial. Whereas the core unit in personal status relations within the lineage was the individual, the core unit in property relations was the undivided nuclear family or “branch” that had not yet split off its share of the estate. Property disputes within the lineage were, in essence, contests between branches, each of which might include members of different generations. The question of status hierarchy between branches thus lost much of its meaning.

To avoid the suspicion of violating status and righteousness by suing an elder, a member of the plaintiff-branch could simply name as defendant a co-owner in the other branch who was of the same or a younger generation. In one Daoguang case, for example, Yao Daxue named his cousin Yao Daji and others as defendants for cutting and selling grave cypresses within land that he claimed as his share, even though his plaint indicated that their actions had been directed by older relatives such as Yao Ruceng. In another case from the same year, Xiang Huagui and Xiang Huageng initially sued their elder collateral relative Xiang Tianju, but the magistrate refused to accept the complaint. They immediately filed a new plaint naming their same-generation relative Xiang Huazong as defendant, and the magistrate then took up the case.

In terms of the subject matter of suits, twenty-one cases involved alleged encroachments on communal lineage property: selling clan land or property, damaging ancestral halls, appropriating funds for ancestral-hall repairs, illicitly cutting or selling jointly owned trees (especially trees on graves), or damaging the graves of common ancestors. Four cases concerned unfair or unclear allocation in household division, or elders’ refusal to divide property. Twenty-three cases involved alleged violations of private property: seizing fields or houses, damaging the graves of agnates, cutting trees beyond one’s boundary, encroaching on land for burial, and similar issues. Twelve cases concerned disputes over transactions in private land or debts: controversies over the purchase or undertakings (yuye), disputes over dian(redeemable sale) contracts, reneging on agreed house sales, coercing low-price sales, violations of contractual obligations by pledgees in relation to buildings or other assets on pledged land, as well as loan and tenancy disputes.

Except for the suits over communal lineage property—litigation that might be framed as arising from “public spirit” in defense of clan interests—most suits concerned private or branch-level property. The concept and practice of private property were thus already widespread.

Contrary to what ideology and formal legislation might suggest, the Nanbu magistrate treated all types of property disputes among kin on essentially the same footing in terms of admissibility: in principle he accepted them. Even in suits by juniors against elders, only two cases were not accepted immediately. In both, the magistrate eventually took up the case and initiated investigation under continued pressure from the plaintiff. Moreover, in his marginal notes refusing immediate acceptance, he did not invoke the juniors’ “violation of status and righteousness” as justification.

In the case already mentioned, where Xiang Huagui and Xiang Huageng sued their uncle Xiang Tianju, the magistrate initially wrote in the margin that the matter should “first be settled by clan and neighbors” because “one should not lightly initiate litigation,” making clear that his refusal to accept the case at once was driven by a desire to reduce his own caseload through delegation to clan mediation, not by concern for defending status hierarchy as such.

At the same time, the magistrate in Nanbu did not show strong enthusiasm for mobilizing community resources to resolve disputes. Philip Huang’s study of civil suits in neighboring Baxian (Ba County) suggests that more than half of those cases were not concluded through formal hall hearings; instead, following the magistrate’s instructions, they were mediated by kin, neighbors, local worthies, and subdistrict heads in what Huang terms a “third realm” between state and society.

Among the sixty kinship property cases examined here, eighteen lack any record of hall hearings or formal court orders, and may be inferred to have been resolved outside the courtroom. At most, therefore, about 30 percent of the cases were settled in this “third realm”—a much lower share than Huang’s estimate for Baxian. This suggests that neither the Nanbu yamen nor local society placed special emphasis on resolving property disputes among kin through extrajudicial mediation as a way of preserving qin qin.

2. The Impact of Embeddedness on Kinship Property Cases

Under broad formulations such as “property relations embedded in kinship” or “the coexistence and competition of property and kinship relations,” embeddedness can be further differentiated. Property relations may be embedded in hierarchical kin ties (such as between uncles and nephews), in relations of seniority among same-generation kin, or in relations between widows and their husbands’ agnates. Property relations may link rich and poor members of the same lineage, where the ethical obligation of mutual assistance among kin may weaken the property claims of the wealthier party.

Certain kinds of property, such as grave estates, ancestral halls, and funds for maintaining ancestral halls, are embedded in shared ancestor worship and subject to special regulation under the Qing Code. To attract the magistrate’s attention and induce favorable judgments, some litigants deliberately highlighted such forms of embeddedness, or related circumstances, in their plaints and statements. All of this must be taken into account in analyzing kinship property disputes and their adjudication.

2.1. Embeddedness and ordinary property disputes among kin

In Nanbu County, disputes over property among relatives most often arose between kin linked by hierarchy and seniority (superiors and inferiors, elders and juniors), between widows and their husbands’ kin, and between adopted heirs from another surname and other potential heirs.

The case records show, however, that regardless of whether the parties consciously emphasized or exaggerated embeddedness, the magistrate’s handling of most such cases did not substantially differ from his treatment of minor disputes among non-kin. He generally adopted an attitude of equal protection of the property rights of all parties.

2.1.1. Hierarchy and seniority

In some cases, the presence of a superior–inferior relationship between litigating kin did not lead the magistrate to favor the senior party.

In one case from Daoguang 18 (1838), for example, Chen Deshou, an elder agnate, accused his collateral junior, Chen Jianyu, and others of illicitly cutting and selling eight cypresses on a jointly owned grave. The magistrate ordered an on-site inspection and summoned the parties. A field report later confirmed that Jianyu had indeed cut three cypresses. At the hearing, Jianyu admitted to cutting the trees but argued that the proceeds had been used to repair the ancestral hall. Because Jianyu’s branch had cut and sold trees on the jointly owned grave without consulting Deshou’s branch, the magistrate reprimanded and punished Jianyu and his associates, ordered the lineage to appoint a reliable person to manage the hall and grave trees, and directed that the proceeds from the sale be used to repair the ancestral hall. He thus relied on investigation and on the basic legal principle that the disposition of jointly owned property requires the consent of all co-owners, rather than simply deferring to the will of the senior kinsman.

In another case, from Daoguang 20 (1840), a younger kinsman, Zhao Wenchao, sued his elder collateral relative, Zhao Shiyou, over a boundary dispute. The magistrate accepted the case immediately. Shiyou claimed that his land adjoined Wenchao’s house and that Wenchao had opened a new path across his land, trampling his crops. After clan and neighbors deliberated, it was agreed that Wenchao should move the path back inside his own boundary, but he refused and instead brought suit.

In a marginal comment, the magistrate expressed suspicion that Shiyou was “using the path as a pretext for extortion.” A field report later confirmed that the two parties’ land did in fact adjoin and that Wenchao had encroached across the boundary by a little more than one chi. A hearing clarified that the path in question was an old lane rather than newly opened, but that its use did indeed risk damaging crops on Shiyou’s side. The magistrate ordered Wenchao to purchase the strip of land next to the path, eliminating the source of future disputes.

Other cases required repeated hearings, but again the magistrate’s focus remained on fact-finding, contractual arrangements, and the parties’ economic capacities, not on enforcing patriarchal hierarchy as such. A case from Daoguang 17 (1837), involving the zhuixu (uxorilocal son-in-law) Deng Zhongcai and the Wang family, illustrates the magistrate’s persistence in recalculating the parties’ economic claims over several rounds rather than punishing Deng harshly for selling his adoptive father’s property and reverting to his natal surname. Despite the morally sensitive issues of widow remarriage, adoption, and “returning to the natal clan,” the magistrate’s decisions focused on roughly fair allocation of property and debts. The thrust of such cases is clear: even in disputes over property among kin, “keeping clear accounts” was seen as the most effective means of resolving conflict.

In many suits, one side alleged that the other was unfilial or had assaulted an elder, but the magistrate remained unmoved. Although the Qing Code required heavy punishment for disobedient or abusive descendants and provided for severe penalties even for verbal insult, none of the cases examined here saw such provisions applied. The magistrate did not tilt his property judgments merely because one party accused the other of unfilial conduct or even physical assault.

Because the magistrate rarely invoked zun zun in property suits between superiors and inferiors, it was all the more difficult in suits between same-generation kin for the claims of the elder to override those of the younger. In handling such disputes, his approach was the same as in other minor civil cases: in principle he accepted the cases, and, once the facts were established, issued relatively fair decisions based on the written law, custom, or contractual provisions. Unlike literati of the time who demanded that “brothers be strictly forbidden to fight over property,” the magistrate seldom criticized the litigiousness of the parties.

2.2.  Widows in litigation

Widows’ involvement in lawsuits likewise did not elicit favoritism from the magistrate. In the standard literati narrative, widows who had lost their husbands—often with young sons or no sons at all—were frequently bullied by their husbands’ agnates; the property of the deceased husband under their control was coveted and contested by lineage members. As quintessential weak parties, they were thought to merit special protection.

Existing research shows, however, that Qing widows were not favored in procedural terms, and the materials here suggest that they were not favored in substantive judgments either.

In a Daoguang-era dispute over dian rights, the widow Ren Zhangshi (who had sons) sued her nephew by marriage, Ren Guoxiang, and others, who had taken land from her under a dian contract (a redeemable sale similar to a mortgage), for refusing her request to “make up the price” and convert the transaction into an outright sale. The hearing confirmed that she had in fact pledged the land to Guoxiang, who argued that he could not afford to buy all of it. The magistrate ordered him and the other defendants to purchase two of the four parcels. When they failed to comply, Ren petitioned for another hearing. The magistrate responded in the margin that, since they were financially unable to buy all the land, he had already limited the obligation to two parcels, and that Ren “must not listen to mischief-makers and, relying on her status as a woman, engage in vexatious entanglements.” Here, the magistrate took the economic capacities of both sides into account and rejected the widow’s excessive demands.

Widows could portray themselves as chaste and weak, oppressed by their husbands’ kin, but their opponents could also invoke Confucian norms to describe them as litigious shrews. In practice, neither rhetoric appears to have had much impact on outcomes.

In a Daoguang case, for example, when Lei Yuanyin sued his cousin Lei Mao for cutting and selling jointly owned grave trees, Mao’s mother, the widow Lei Lishi, argued that the trees had been planted in her own land by her late husband and that male agnates had tried to exploit the “loneliness and weakness” of mother and son to coerce a purchase at a very low price. Investigation showed that most of the trees were indeed on her property, though one jointly owned cypress had also been cut and sold. The magistrate neither punished the false exaggeration by Yuanyin nor the cutting of a single joint tree by Lishi’s household; he simply allowed the matter to rest.

In another case from Xianfeng 7 (1857), a widow, Yang Wangshi, sought either a price adjustment or a resale arrangement concerning a paddy field originally pledged by her late husband to his elder brother. The brother’s agnates denounced her in a joint petition as a woman who “does not keep to womanly virtue” and constantly relies on shrewishness to cause trouble, even threatening to die in his house. The case went through several hearings, and the magistrate alternated between requiring the elder brother to buy the field outright and requiring him, as dangzhu (actual holder) of the pledged land, to entrust a broker to sell the field for Wangshi’s benefit. Her reasonable demands were basically satisfied; the moral attacks by her in-laws had little effect.

A complex inheritance dispute during Xianfeng 9 (1859), in the midst of the Taiping War, involved fierce accusations between Liu Fang and her aunt by marriage, the widow Liu Yangshi, over house property that Fang sought to sell. Fang depicted Yangshi as the daughter of a “rebel bandit,” accused her of siphoning Liu family funds to purchase land near her natal home, and denounced the marriage she arranged between the boy she was raising as a son and one of her natal nieces as a plot to control Liu property. Yangshi responded that she was merely carrying out her late husband’s last wish to preserve the house and recalled the hardships she had borne in raising, educating, and marrying off the younger generation.

The magistrate paid little attention to either side’s moral claims. Instead he clarified the property transactions: Fang had once pledged the shop she owned as her share; later Yangshi had redeemed it; Fang now sought to sell it again. Since she had not repaid Yangshi’s redemption payment, Yangshi blocked the sale. The magistrate ordered the parties to settle the amount of Fang’s debt and then forbade Yangshi to obstruct the sale.

2.3. The discourse of “disrupting the lineage through adoption from another surname”

Adopting an heir from another surname was prohibited by Confucian ritual and the Qing Code, but was quite common in practice. Disputes over such adoptions typically centered on inheritance. Childless households that adopted an heir from another surname thereby deprived nephews from other branches of the opportunity to succeed to the line and inherit the estate. Such nephews therefore tended to deny the inheritance rights of adoptees and to remind the magistrate in their plaints that the case involved “an alien son disrupting the lineage,” in violation of statutory prohibitions.

The Nanbu magistrate’s stance in such disputes was straightforward. If an adoptee from another surname had already been taken back into his natal lineage, he could not inherit the adoptive father’s estate; if he remained in the adoptive line, he retained inheritance rights.

In 1855 (Xianfeng 5), for example, a division of property among members of the Xiang lineage led to conflict between Xiang Chunlai and others on one side and Xiang Chunliang (originally surnamed Wei) on the other. Chunlai’s side stressed that “adopting an alien son to disrupt the lineage is explicitly and strictly forbidden by the statutes; how can he still think to claim a share of the estate?” Because Chunliang had already been taken back into his natal lineage by his elder brother, the magistrate ruled that he could not participate in the division of Xiang property. Since he had not yet resumed the Wei surname in practice, the Xiang family was required to pay him a small sum as “compensation for returning to his natal clan.”

In the Liu dispute noted above, Fang lamented that “it is pitiful that there is only one son of the Liu surname, yet all the property left by father and uncle has been seized by an alien son,” and again invoked the statutory ban on disrupting the lineage. The magistrate nonetheless took no interest in whether the boy was an adopted son or adopted heir and focused only on confirming that Fang was entitled to one shop.

2.4Embeddedness and disputes over special kinship property regimes

Sometimes, property relations among kin were embedded in special institutional regimes governing kinship property. Certain forms of property—such as grave estates and ancestral halls—were closely bound up with lineage ethics and enjoyed special legal status. Yet when disputes arose over such property, the Nanbu magistrate did not adopt a “lineage first” stance.

Grave estates—including burial plots, tombs, and grave trees—occupy a special place in the lineage system. In keeping with Confucian ancestor worship, the Qing Code provided highly detailed and even obsessive penalties for such acts as grave-digging, coffin-opening, coffin-stealing, coffin-destroying, corpse-stealing, corpse-mutilating, corpse-abandoning, corpse-exposing, stealing bricks or stones from graves, stealing burial goods from coffins, leveling graves to make fields, and burying bodies in the graveyards of others. Maximum penalties reached strangulation or beheading.

In the Nanbu cases examined, however, the magistrate never applied such severe provisions. Among the nine disputes over graves and graveyards among kin, only in one Daoguang case did he note in the margin that if the allegation of digging up a grave and exposing bones were true, it would be a “grave breach of the law.” Strictly speaking, such a case should have triggered a full criminal process. In practice, the magistrate treated it as a minor civil dispute, gave the parties room to reach private settlement, and, even when the destruction of a grave was confirmed, imposed no punishment of penal servitude or higher, instead handling the case like other land disputes and focusing on civil restoration.

The most frequent grave-related disputes concerned fengshui trees—usually cypresses planted near graves to guard the tombs and bless the descendants. Woodland around such trees was often designated as jointly owned forbidden ground, where cutting was permanently banned. The rise in suits over grave trees in Daoguang and Xianfeng Nanbu probably reflected growing demand for timber associated with the recovery of the salt industry and population growth.

Since the code did not explicitly prescribe penalties for cutting grave trees, the magistrate’s treatment was even more lenient. His basic attitude was to protect the property rights in such trees much as he protected private property: if lineage members were found to have cut and sold grave trees, he ordered them to turn over the proceeds to the lineage as public funds, often designated for repairing the ancestral hall. Where trees had not yet been cut, he could order a permanent ban on cutting, and sometimes he issued proclamations to that effect at the lineage’s request.

Other disputes over special forms of kinship property were handled similarly as ordinary minor cases. In one Daoguang suit, for example, two members of the Luo lineage accused others of mismanaging a fund for constructing and repairing the ancestral hall and failing to account for it. The magistrate initially declined to accept the case, questioning why only two individuals were suing over a matter concerning the entire lineage, but later held a hearing, confirmed mismanagement, and ordered the managers to turn over a specified sum to the lineage. In another case, involving a fire that burned down the ancestral hall after pea vines were piled inside, the clan resolved that the responsible party should pay for rebuilding. He pleaded poverty at the hearing, and the magistrate, constrained by law, could only punish him by public shaming in a cangue and exempt him from payment.

2.5. The few situations in which embeddedness genuinely “distorted” property rights

Among the sixty cases examined, there were indeed a few situations in which embeddedness led the magistrate to make special accommodations. One kind of accommodation derived from qin qin and took the form of leniency toward false accusers. As noted earlier, after Wang Guoxi falsely accused his uncle of secretly selling jointly owned property, the magistrate exempted him from punishment “in light of their belonging to one patriline.” Similarly, in the Lei dispute over grave trees, once most of the allegations were shown to be false, the magistrate again excused the false accusation on the grounds of shared lineage. In other cases where allegations of grave destruction or illicit cutting of grave trees proved to be false, he likewise refrained from punishing the accuser.

These decisions softened the harsh reverse-penalty rules in the Qing Code concerning false accusations, but did not directly undermine property rights as such.

More genuinely “distortive” were cases in which the magistrate partially exempted poor (or self-proclaimed poor) parties from liability for infringing property rights, again drawing on qin qin. Because kin were understood to owe mutual assistance, some property claims against poor relatives could not be enforced to the strictest degree.

In the ancestral hall fire case noted above, the party responsible for the fire claimed poverty and was relieved of the obligation to pay for rebuilding, punished only by public shaming. In a Daoguang 20 (1840) dispute in which Ke Fuyuan had purchased land from his uncle Ke Xiancheng, a later famine season saw Xiancheng’s household cut and sell trees on the purchased land despite the deed’s inclusion of trees on the ancestral grave. Xiancheng claimed that his family had nothing to eat or wear and had no recourse. Clearly he lacked the means to compensate Fuyuan, and the magistrate limited himself to a verbal reprimand.

Even so, such poverty-based accommodations were rare and far from the norm.

In sum, in the various disputes over property among kin in Nanbu County, Sichuan, during the Daoguang and Xianfeng reigns, facts and discourses of embeddedness had little systematic impact on judicial outcomes. The magistrate’s approach closely resembled his handling of other minor civil cases: he did not follow Confucian dogma or strictly adhere to the letter of the code, but he also did not dispense arbitrary “kadi justice.” His judgments rested on the premise that “whether private or communal property, both should receive equal protection.” He respected facts, contracts, and custom and sought relatively precise calculation and protection of the parties’ interests. His adjudication was highly predictable and reflected a protective stance toward property-based individualism and a commodity economy.

Unlike Qing criminal law, which strongly emphasized zun zun, the residual influence of Confucianism in kinship property suits appeared mainly in the softer values of qin qin and ren (benevolence), manifested in leniency toward false accusers and occasional interventions for the poor. These interventions slightly softened the rigidity of property rights and expressed some sympathy for weaker parties, but—as Peng Kaixiang has argued—such “humanitarian” interference only very modestly distorted the price mechanism at the core of a market economy.

3. Rethinking Embeddedness: Early Modern Markets, Status, and Law

The concepts of embeddedness and disembeddedness were first proposed by Karl Polanyi. Writing in the 1940s, he argued that market development followed a trajectory from being embedded in various social or state institutions at its birth to ultimately becoming disembedded from them. In the feudal era, markets remained local in scope and were tightly constrained by social organizations such as villages, manors, towns, and guilds. Only in the age of mercantilism (from the fifteenth to the eighteenth centuries) did states deliberately create nationwide markets in order to integrate domestic economic resources and more effectively pursue external political and economic struggles.

At that stage, however, markets, though disembedded from “society,” were still embedded in the state and heavily regulated. They served as tools of raison d’état. Only toward the end of the eighteenth century did Western economies come to operate fully according to the logic of the self-regulating market. Regulation came to be viewed as contrary to “nature” and was dismantled. Labor, land, and money, as well as commodities, were fully commodified and treated as objects that could and must be bought and sold.

Disembeddedness, in Polanyi’s account, generated severe social crises. The self-regulating market turned back upon society and provoked counter-movements. Crises produced by excessive marketization were especially acute in the realms of labor and land. Comercialization of labor meant that large numbers of people had to submit to market demand and to wage fluctuations. For individuals, unemployment and sharp wage cuts caused by market swings were intolerable and led to poverty, famine, crime, and unrest. Once land, as part of nature, was turned into a factor of production, pollution, food crises, and other problems followed. In response, nineteenth-century politicians, landowners, and workers’ organizations sought to curb the self-regulating market through protective legislation, unions, and other means so that it would not destroy society.

Because Polanyi treated “the economy” (or “the market”) and “society” as essentially opposed, market embeddedness in “society” meant, for him, constraints on the market. Expressed in the language of new institutional economics, embeddedness in Polanyi’s sense implies restrictions on private property rights that prevent them from circulating fully or plunge them into ambiguity, thereby reducing market efficiency.

Since the 1970s, economic sociology has appropriated the concept of embeddedness but used it in another direction: to stress that economic life is always embedded in social relations and networks, and that such embeddedness can promote markets. Mark Granovetter’s network research, especially his theory of “the strength of weak ties,” emphasizes the significance of social networks for modern market economies. Weak ties—connections to acquaintances rather than close friends—offer distinct advantages for market actors in expanding business opportunities, finding jobs, fostering trust, and reducing transaction costs.

This network-analytic approach has been widely adopted in economic sociology and has encouraged critical reflection on the highly abstract, depersonalized depiction of markets in neoclassical economics. Some scholars have even argued that contemporary Western economies have entered a stage of “network capitalism,” accompanied by a “new spirit of capitalism” characterized by the reintegration of private life and professional relationships, de-bureaucratization and decentralization, creativity and flexibility, and the networking and flattening of economic relations.

Clearly, these theories are grounded in Western experience and bear, to varying degrees, a Eurocentric cast. Their application to the political economy of the Qing is therefore limited. Polanyi’s framework for the history of markets rests primarily on the experience of Western and Central Europe since the Middle Ages, where the free circulation of land was constrained by feudal law and customary law and the organization of handicrafts by urban guilds, making it difficult for a full market system to emerge. Early modern mercantilist states strove to create unified markets but also heavily regulated them to serve the goal of strengthening state power. In this context, it was natural for Polanyi to view “the economy” and “society” (and “the state”) as opposed and to cast embeddedness as a constraint on markets.

The Qing economy, however, operated in a social and political environment more tolerant of markets. Since the institutional transformations of the Tang–Song period, the imperial state had produced a social landscape of bianhu qimin—registered commoners under a unified administrative order; Qing rulers declined to embrace proposals to limit landholding; the local state apparatus was relatively rudimentary and exercised weak control over economic affairs; and under the ideology of benevolent government and the banner of “never increasing the tax quota,” the state’s demands on social resources diminished. Together, these factors yielded an economic picture in which the old corvée-and-tax regime faded, monopolies and franchises were gradually abolished, and markets deepened and expanded.

In such a context, does embeddedness necessarily signify a force opposed to the market? This question deserves serious thought.

Moreover, because Granovetter and other economic sociologists focus predominantly on weak ties in contemporary Western economies, their theories do not fully capture the economic functions of strong ties such as kinship in history. As this and other studies show, property and economic relations in the Qing were frequently embedded in kinship. In the Qing and early modern China, did the embedding of markets in strong ties, like their embedding in weak ties today, serve only to promote markets? This, too, requires reflection. Critics have further observed that, although economic sociology emphasizes embeddedness, it often treats it abstractly, paying insufficient attention to the concrete content of the “social” factors into which markets are embedded. This tendency hinders recognition of differences in meaning and effect among various forms of embeddedness in early modern economies.

Thus, while embeddedness is undoubtedly a valuable concept for thinking about Qing political economy, theories of embeddedness and their associated propositions must be revised in light of Chinese experience. Research including the present study shows that embedded property rights in the Qing differed both from the market-constraining embeddedness of feudal Europe and mercantilist states and from the market-promoting, rationality-driven embeddedness of contemporary market economies.

In the specific case of property rights embedded in kinship, Zhao Siyuan’s work shows that kinship could provide information and credit guarantees that facilitated contracting, but could also constrain land transactions—for example, through pre-emptive purchase claims by close kin and neighbors. The litigation archives examined here likewise indicate that familialism in kinship property in Nanbu was only superficial. In practice, relatives routinely engaged in voluntary transactions premised on private property. When disputes arose, they did not hesitate to go to court and assert their rights, nor did they expect special treatment simply because those rights were embedded in kinship.

At the same time, embeddedness could be exploited in an anti-market direction, particularly through discourses of juniors offending elders, widows being oppressed, adopted heirs from another surname disrupting the lineage, or households being poor. Such rhetoric aimed to induce officials to hand down decisions that deviated from private property and market logic.

In short, the embeddedness of property rights in the Qing occupied a position between the premodern embeddedness described by Polanyi and the modern embeddedness analyzed by Granovetter, reflecting the diversity and complexity of early modern economies.

Within Chinese scholarship, it is particularly important to highlight the market-promoting side of embedded property rights in the Qing, since their constraining side has long been emphasized. By modern standards, embeddedness can reduce efficiency, but in the Qing context market efficiency might have been lower without it. Underdeveloped information, communication, and transport technologies, together with incomplete private-law institutions and practices, meant that markets could not be as transparent or run as smoothly as they do today. Under such conditions, embedding property rights in status and established relationships helped actors acquire information, build trust, and reduce transaction costs.

Personalized land-transfer practices in the countryside, rooted in kinship and neighborhood ties, in fact supported rapid circulation of land and enabled demographic and economic differentiation among households to be accommodated in fine-grained, low-cost ways. In the absence of company law, joint-stock forms, and limited liability, lineages and corporate ancestral estates (zongzu and jisi gongye), which originated in ancestor worship, often functioned in practice as voluntary commercial partnerships among kin. “Emerging from the premodern” was not a simple linear process of moving “from status to contract.” In the economic reality of the early modern period, status and contract, blood ties and market relations, overlapped and sometimes reinforced one another.

Beyond the significance of embeddedness in the popular economy of the Qing, this article has also extended its perspective to legal history to reveal the complex interactions between state power and grassroots economic actors. To some extent, property rights in the Qing were themselves embedded in the legal and governance system of the dynasty. As a territorially unified, prefectural–county empire, the Qing applied a uniform body of statutes, a standardized local officialdom, and common litigation procedures across its eighteen interior provinces, creating a local political landscape more uniform than that of feudal Europe. Villagers in any province, prefecture, subprefecture, or county organized their economic activities against the backdrop of the state and its laws. When disputes arose, they habitually sought official redress through litigation. In litigation, property relations were embedded directly and concretely in “law in action,” and the impact of law on the economy became more immediate and prominent.

Any discussion of embedded property rights in the Qing must therefore take legal factors seriously. How did the Qing state evaluate embedded property rights? In property disputes among kin, how did litigants use official ideology and legislative resources to serve their own purposes? Did local officials ignore kinship ties and judge purely from a property and market perspective, or did they attend to status relations between the parties? If so, with what effects?

On these questions, the present study shows that while qin qin and zun zun in Confucian thought were indeed unfavorable to clear, equal, and complete assertions of property rights among kin, the Qing Code both inherited some Confucian norms and made concessions to property-based individualism. In kinship property suits, some litigants framed their demands in terms of a relatively pure logic of property protection, while others drew on discourses of hierarchy, gender, adoption, or poverty to strengthen their claims and hoped for favorable treatment.

In most cases, however, the authorities paid little attention to such status-based rhetoric. Only in a minority of cases did they invoke qin qin or “belonging to one patriline” to justify lenient treatment that slightly softened the rigidity of private property rights. In the majority of cases, the facts were clarified, property rights were protected, and the parties’ interests were carefully weighed. Compared with the more varied attitudes and strategies of the litigants, the basic-level Qing state displayed a more consistent market-and-property logic in dealing with kinship property relations. Grassroots judicial authorities sought as far as possible to curb the potential distortions to property clarity arising from kinship ties. Such efforts may have been driven by pragmatic concerns—facilitating local governance and tax collection—but they may also have reflected a new ideology affirming the legitimacy of private property.

Under the pull of legal practice, the embeddedness of property rights in Qing China appears to have evolved in a distinctly market-oriented direction, while its anti-market aspects seem to have been in retreat.

4.Conclusion

The concept of embeddedness does not directly mean "anti-market" or "anti-private property," although people might subconsciously draw this equal sign. Against embeddedness theories generated from Western experience, it is necessary to engage in dialogue with Chinese historical experience and reach more appropriate and comprehensive theoretical and empirical understandings. Regarding the fact that Qing property rights were frequently embedded in kinship relations, this article depicts a picture that is relatively complex but meaningful. Although Confucian ideology was far from friendly to clear and equal property relations among relatives, Qing official legislation and folk customs had gradually made concessions to private property rights. In Nanbu County, Sichuan Province, during the Daoguang and Xianfeng reigns, a large number of parties to property disputes among relatives walked into the county yamen requesting the government to resolve property controversies. Some parties used traditional discourses such as juniors offending seniors, widows being bullied, adopted heirs of different surnames confusing the lineage, and family poverty to induce the book-learned magistrate to make judgments favorable to themselves, but there were also many parties who only described the case as a property dispute and asserted their property rights. The magistrate was basically not induced by the exaggerated words in the complaints, but accepted cases, investigated facts, examined contracts, and applied laws and customs with a neutral attitude, making judgments that respected property rights and transactions. Only in a few cases did the magistrate, out of the concept of "affection for kin" and sympathy for the poor, slightly weaken the rigidity of property rights and grant leniency to certain parties who should have borne responsibility. But in any case, at least in property lawsuits among relatives, ethical codes did not "eat people" (lijiao chi ren). Combining reflection on relevant theories and reference to various empirical studies, this article argues that Qing property embeddedness could be used to enhance trust, reduce transaction costs, and promote market development, but could also be utilized to restrict the free circulation of property and weaken the rigidity of property rights, thereby constituting a restraint on the market. Moreover, once starting from the dimension of legal practice focused on by this article, we have reason to believe: the role of embeddedness in property circulation and marketization was fully tolerated by state power, while its anti-market role was suppressed more by officials.

Further, if Qing property relations among relatives had "unexpectedly" presented a considerable degree of privatization and marketization logic, then other more general, non-kinship property relations in the Qing Dynasty, which were not "interfered" with by embeddedness, might demonstrate an even more distinct market-property logic. In fact, scholars have revealed rich early modern implications in Qing property relations represented by land rights relations. The highly marketized Qing land rights system could achieve clear division of property rights to reduce transaction costs. Land rights differentiation provided transaction forms and plans with different functions for various market subjects, thereby promoting resource circulation to a great extent. Qing law played a positive role in this process. Of course, this is another grand story beyond the topic of this article.

Of course, it must be emphasized that things "invisible" in certain litigation archives still need to be taken seriously. In litigation archives, we rarely see property disputes between direct blood relatives, especially between grandparents/parents and children/grandchildren—these "closest kin." This may still imply that in Qing law and ethics, there existed a highly repressed side. Such disputes might still have been firmly suppressed within the family by patriarchy. This implies that even if possessive individualism had appeared in the Qing Dynasty, the vigorous individual liberation movement in modern China still possessed unquestionable rationality and legitimacy.