Social Order through Contracts

A Study of the Qingshui River Manuscripts

This book is the first Western-language monograph on the study of the Qingshui River manuscripts. By examining over 3,000 contracts and other manuscripts, this book offers constructive insights into the long-standing question of how and why a society in late imperial China could maintain a well-functioning social system with few laws but many contracts, i. Les mer
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Leveringstid: Sendes innen 7 virkedager
På grunn av Brexit-tilpasninger og tiltak for å begrense covid-19 kan det dessverre oppstå forsinket levering.

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This book is the first Western-language monograph on the study of the Qingshui River manuscripts. By examining over 3,000 contracts and other manuscripts, this book offers constructive insights into the long-standing question of how and why a society in late imperial China could maintain a well-functioning social system with few laws but many contracts, i.e., Hobbesian "words without sword." Three interrelated questions, what contracts were, how and why they worked, are explained successively. Thus, this book presents a non-stereotypical "contract society" in southwest China, arguing that the social order which provides predictability and regularity for economic prosperity could be formed and maintained through contracts even under the condition of relatively weak influence of governmental and legal authorities.
This book benefits readers who are interested in law, society, and history. While presenting the socio-legal landscape of a frontier area in late imperial China for historians, this book provides a novel and empirical interpretation of the supposedly well-known contract device for legal researchers, thereby proposing materials for an integrated theoretical explanatory framework of contracts in general. By employing the innovative theory of blockchain in its key argumentation, the book offers a creative interpretation of historical and social phenomena.

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Innholdsfortegnelse

Abstract Dates and Currency I. Introduction 1. The story of the wealthiest 2. Research question: A contract society? 2.1. Economic success, social order, and contracts 2.2. The general puzzle of how and why the contract worked 3. Sources: The Qingshui River region and beyond 3.1. A brief introduction to the Qingshui River manuscripts and their studies 3.1.1. The discovery 3.1.2. Where and when?3.1.3. The content 3.1.4. Major collections, publications, and state of the field 3.2. Sources in and beyond the Region 3.2.1. Taking the Qingshui River manuscripts as the core source 3.2.2. Wendou, a cluster of villages, the region, and beyond 4. Synopsis and structure of this study II. Rediscovering Contract in the Qingshui River Region 1. Introduction: Standard and borderline contracts 1.1. A general and complex term 1.2. "Standard cases" and "borderline cases" 2. Contracts in law and practice 2.1. Contracts in contract laws 2.1.1. Defining contract in laws: A comparative approach 2.1.2. Contracts and the Great Qing Code 2.1.3. Contracts without contract law? 2.2. Categorization of contracts in everyday life 2.2.1. Contractual manuals 2.2.2. A necessary hypothesis 3. Contents of a contract: Beyond agreement i Table of Contents 3.1. The tense of a contract: Future or past? 3.2. The performance of contracts 3.2.1. Contracts need no performance 3.2.2. Producing contracts as the performance 3.3. Championing the past in the future 3.3.1. Negative obligations in the future tense 3.3.2. The established and confirmed 3.4. Transcending as an agreement 3.4.1. Contract without agreement? 3.4.2. Jural relations: An external observation 4. Identifying contracts by form: The internal and external 4.1. The textual form 4.1.1. Essential elements? The changing and unchanged 4.1.2. Specialized language and formulaic expressions 4.2. The ritual form 4.2.1. Customs of contracting 4.2.2. Textual reflections 4.3. The formulaic beginning of a contract: Indicating and integrating 4.3.1. The formula of the beginning 4.3.2. Integrating the form and content 4.3.3. The indicator as a shortcut 5. Paper matters: The materiality of contracts 5.1. The burning of contracts 5.1.1. The story of Yao the Millionaire 5.1.2. A contract of dispute settlement 5.2. The non-conceptual contract: The contract and its material carriers 5.2.1. The abstract and concrete contract 5.2.2. Material carriers other than paper 5.3. The validity of the material: Oral and non-original 5.3.1. Oral contracts5.3.2. Copies of the contract 6. Conclusion III. Middlemen1. Introduction: Understanding middlemen within a contract 2. The primary and the secondary: Formation and restoration 2.1. Four roles 2.2. Two levels 3. The primary: Introducers, witnesses, and guarantors 3.1. Introduction 3.1.1. Matchmaking and facilitation 3.1.2. Duzhong ii Table of Contents3.1.3. Hanzhong 3.2. Witnessing 3.3. Guarantee 4. The secondary: Arbitrators and peacemakers 4.1. The "original middleman" 4.2. Arbitration 4.2.1. Fact-finding 4.2.2. Reasoning 4.3. Mediation 5. The middleman as the third party and the third party as the middleman 5.1. The involvement of the middleman in a contract 5.2. Incorporating various third parties as middlemen 5.3. A partly open system of middlemen 6. Conclusion 1V. Scribes 1. Introduction: Taking scribes seriously 1.1. Scribes and the writing of contracts 1.2. Contractual scribes, official scribes, and litigation lawyers 1.3. The institution of scribes and its operation 2. The demand for scribes 2.1. The typology of contract writers 2.2. The number of scribes 2.3. The proportion of holographic contracts and the extent of scribal demand 2.4. The demand for scribes in different kinds of contracts 3. Drafting of a contract by a scribe 3.1. Appointing the scribe 3.2. Sources for writing contract content: Words and drafts 3.2.1. Yikou or according to the spoken words 3.2.2. Yigao or according to the draft 3.3. Communicating knowledge of contract forms 3.3.1. Knowledge communication from the hinterland to the frontier area 3.3.2. Exercising contract forms in villages: Application and imitation 3.4. Postscripts and signatures 4. Scribe's fee 4.1. To pay or not to pay? 4.2. How much? 4.3. Which is higher? Comparison of the scribe's fee and the middleman's 4.4. Who pays? 4.5. How and when to pay? 5. Conclusion iii Table of ContentsV. Functioning Mechanism of Contracts in the Society 1. Introduction: Contract in its context 1.1. Revisiting the contract within the society 1.2. The functioning mechanism of contracts2. The question of honoring contracts: Departing from the myth of enforcement 2.1. Contractual order as an empirical fact 2.2. Generic and sui generis: The logic of enforcement 2.3. A weaker "gunman" and a better "bad man"? Shifting to "the internal point of view" 3. Recognition and the rightfulness of the contract 3.1. Contract text as justification 3.2. Behind the text: Willingness and estoppel 3.2.1. Willingness 3.2.2. Estoppel 3.3. Recognition and property order 3.3.1. Universal recognition and its limitations in context 3.3.2. Three levels of recognizers 3.3.3. Justifying the post-transaction property order in the contract text 4. Making recognition provable: Publicity and perpetuity of contracts 4.1. Indispensable proofs: Ping in the contract text 4.1.1. Ping and the contract manuscript 4.1.2. Ping and the middleman 4.2. Middlemen and the publicity of contracts 4.2.1. From private to public through the middleman 4.2.2. Contracts without middlemen 4.3. Scribes and the perpetuity of contracts 4.3.1. The power of words: Readers in the future 4.3.2. Renewing the contract 4.4. Provable recognition 5. In contract we trust? A blockchain-like trust architecture 5.1. Blockchain, non-centrality, and trust architecture 5.1.1. Blockchain as a novel solution 5.1.2. A noncentral trust architecture 5.2. Broadcasting the contract: Distributed ledger in the village society 5.3. Chaining the contract: The contextualization of a contract 5.3.1. The consecutiveness of contracts5.3.2. Correcting the chaining error: A case 5.4. Literacy as a technical barrier 5.4.1. Literacy as a technique 5.4.2. The fall of a scribe: The price of forgery 5.5. Authenticity and the construction of trust architecture 6. Conclusion iv Table of ContentsVI. Beyond Public and Private: Contract and Social Order 1. Contract as a practical device: Structuring the rediscoveries 1.1. The tripartite structure of contracts: A theory 1.1.1. An overview: Materiality, formality, and substantiality 1.1.2. The sequence of examination 1.2. Application and verification 1.2.1. Materiality: The remade contracts 1.2.2. Formality: The contract of mountain allocation 1.2.3. Substantiality: Contracts of kitty and tomb contracts 2. Contract as a social system: The technicalization of morality 2.1. Contract and its context 2.1.1. An overview: Middlemen, scribes, and functioning mechanism 2.1.2. Contract as the technicalization of morality 2.2. Restoration of order: Challenges from breaches and forgeries 2.2.1. Disputes and excuses for breach2.2.2. Forgeries: Legitimization within the context 2.2.3. Restoring order through contracts 3. Private contracts and public order 3.1.1. Applying contracts in public issues 3.1.2. Facing the super-large-scale stranger society VII. Conclusion GLOSSARY BIBLIOGRAPHY

Om forfatteren

Jian Qu has accomplished his doctorate from Heidelberg University, Germany, in 2020. Prior to that, he graduated from Tsinghua University with a Master of Law degree (2015). He also studied at Sciences Po, Paris, and obtained two bachelor's degrees from Southwest University of Political Science and Law (LL.B., 2012) and from Southwest University (B.A., 2012). His studies on legal theory and legal history were supported by the CSC, the Max Weber Foundation, and the DAAD. He was a visiting researcher with a scholarship at the Max Planck Institute for European Legal History, Frankfurt, in 2018, and the year after, he published his first book, Yanchu fasui ("Taking Promulgated Words as Law," in two volumes), for which he won the biennial Zeng Xianyi Prize for Outstanding Monographs on Legal History (2019).