Article Modern China Privatization of Marriage 1-27 ©The Author(s)20l4 in Post-Socialist China Reprints and permissions: sagepub.com/journalsPermissions.nav D○北10.1177/0097700414536528 mcx.sagepub.com SAGE Deborah S.Davis! Abstract Over the past three decades,a distinctly post-socialist form of marriage with high rates of divorce as well as rising rates of marriage and remarriage has emerged as the result of a"triple turn"by the party-state in regard to the institution of marriage:a "turn toward"marriage as a voluntary contract, a "turn away"from close surveillance of sexual relationships,and a "turn away"from protection of communal property.The one-child policy runs against these three prevailing"turns"toward privatization,but to date this contradiction has been muted by a de facto distinction between(strong) control over reproduction and (weak)control over sexual relationships. Moreover,as illustrated here through close analysis of three recent interpretations of the Supreme People's Court and interviews with ordinary citizens in Guangzhou and Shanghai,by continuing to extend the logic of voluntary contract to intimate relationships,the party-state's own actions (and inaction)serve to accelerate privatization of marriage in post- socialist China. Keywords marriage,sexuality,property rights,one-child policy,post-socialism In explaining the changes in the experience of marriage after 1949,many schol- ars(including myself)have emphasized how provisions of the Marriage Law of 1950 expanded the rights of women as brides,wives,and daughters-in-law and Yale University,New Haven,CT.USA Corresponding Author: Deborah S.Davis,Department of Sociology.Yale University.PO Box 208265.New Haven, CT 06520,USA. Email:deborah.davis@yale.edu Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Modern China 1–27 © The Author(s) 2014 Reprints and permissions: sagepub.com/journalsPermissions.nav DOI: 10.1177/0097700414536528 mcx.sagepub.com Article Privatization of Marriage in Post-Socialist China Deborah S. Davis1 Abstract Over the past three decades, a distinctly post-socialist form of marriage with high rates of divorce as well as rising rates of marriage and remarriage has emerged as the result of a “triple turn” by the party-state in regard to the institution of marriage: a “turn toward” marriage as a voluntary contract, a “turn away” from close surveillance of sexual relationships, and a “turn away” from protection of communal property. The one-child policy runs against these three prevailing “turns” toward privatization, but to date this contradiction has been muted by a de facto distinction between (strong) control over reproduction and (weak) control over sexual relationships. Moreover, as illustrated here through close analysis of three recent interpretations 解释 of the Supreme People’s Court and interviews with ordinary citizens in Guangzhou and Shanghai, by continuing to extend the logic of voluntary contract to intimate relationships, the party-state’s own actions (and inaction) serve to accelerate privatization of marriage in postsocialist China. Keywords marriage, sexuality, property rights, one-child policy, post-socialism In explaining the changes in the experience of marriage after 1949, many scholars (including myself) have emphasized how provisions of the Marriage Law of 1950 expanded the rights of women as brides, wives, and daughters-in-law and 1Yale University, New Haven, CT, USA Corresponding Author: Deborah S. Davis, Department of Sociology, Yale University, PO Box 208265, New Haven, CT 06520, USA. Email: deborah.davis@yale.edu 536528 MCXXXX10.1177/0097700414536528Modern ChinaDavis research-article2014 Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Modern China more generally increased the autonomy of the conjugal pair.However,while the 1950 law supported a new form of companionate marriage and construed mar- riage to be the"personal property"(Ocko,1991:319)of the husband and wife, in other ways,the 1950 Marriage Law repositioned and strengthened the state's oversight of the institution of marriage(Davis and Harrell,1993;Palmer,1995). First,in contrast to the marriage regulations that the Chinese Communist Party (CCP)had drafted earlier for its base areas,the 1950 Marriage Law recognized a marriage only after state registration and refused to treat long-term cohabita- tion as de facto marriage(Palmer,1995).Second,by requiring that all divorces be registered with the local government and all petitions for divorce be subject to mediation first by leaders of the local community and later by court officers, the 1950 law inserted the state into disputes that previously had involved only family members (Alford and Shen,2004;Diamant,2000;Huang,2005). Moreover,in the case of divorce,the law stated that the collective "needs of production"(Article 23)explicitly trumped the individual interests of either spouse,thereby making marriage as much a"social"as personal form of prop- erty (Ocko,1991:320).Finally,even though the 1950 law(Article 15)granted children born outside marriage the same rights as those born to a married couple, by mandating monogamy and ignoring unregistered unions,the law more effec- tively limited childbearing to married couples than had either pre-1949 law or custom.In sum,multiple provisions of the 1950 Marriage Law empowered state agents as social engineers to mobilize the institution of marriage to advance the larger project of national development. The Marriage Law of 1950 also directly redefined the norms and opportu- nities for sexual intimacy.When Article 2 prohibited concubinage,the law conflated sexual intimacy and monogamous marriage for men as well as women.By criminalizing prostitution and closing brothels,the CCP further restricted sexual relationships to married couples.Before 1949,wealthy men often took secondary wives and many men visited prostitutes before and after marriage.Women,by contrast,were expected to be virgins before marriage and were severely punished for adultery (Hershatter,1997;Mann,2011). After 1950,both male and female sexual relationships became subject to legal and public censure.And in the context of political campaigns to identify saboteurs of socialism,sexual infidelity or even premarital sexual intimacy could be grounds for punishing individuals as class enemies(Chan,Madsen, and Unger,1984;Hong,1997;Kang,2005). Legal reforms initiated the "socialization"of marriage,but CCP economic policies that eliminated private ownership of land and capital created the enduring,institutional foundations for"socialist"marriages.After full col- lectivization and criminalization of private entrepreneurship,families could no longer accumulate substantial wealth.Henceforth,collective property Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
2 Modern China more generally increased the autonomy of the conjugal pair. However, while the 1950 law supported a new form of companionate marriage and construed marriage to be the “personal property” (Ocko, 1991: 319) of the husband and wife, in other ways, the 1950 Marriage Law repositioned and strengthened the state’s oversight of the institution of marriage (Davis and Harrell, 1993; Palmer, 1995). First, in contrast to the marriage regulations that the Chinese Communist Party (CCP) had drafted earlier for its base areas, the 1950 Marriage Law recognized a marriage only after state registration and refused to treat long-term cohabitation as de facto marriage (Palmer, 1995). Second, by requiring that all divorces be registered with the local government and all petitions for divorce be subject to mediation first by leaders of the local community and later by court officers, the 1950 law inserted the state into disputes that previously had involved only family members (Alford and Shen, 2004; Diamant, 2000; Huang, 2005). Moreover, in the case of divorce, the law stated that the collective “needs of production” (Article 23) explicitly trumped the individual interests of either spouse, thereby making marriage as much a “social” as personal form of property (Ocko, 1991: 320). Finally, even though the 1950 law (Article 15) granted children born outside marriage the same rights as those born to a married couple, by mandating monogamy and ignoring unregistered unions, the law more effectively limited childbearing to married couples than had either pre-1949 law or custom. In sum, multiple provisions of the 1950 Marriage Law empowered state agents as social engineers to mobilize the institution of marriage to advance the larger project of national development. The Marriage Law of 1950 also directly redefined the norms and opportunities for sexual intimacy. When Article 2 prohibited concubinage 纳妾, the law conflated sexual intimacy and monogamous marriage for men as well as women. By criminalizing prostitution and closing brothels, the CCP further restricted sexual relationships to married couples. Before 1949, wealthy men often took secondary wives and many men visited prostitutes before and after marriage. Women, by contrast, were expected to be virgins before marriage and were severely punished for adultery (Hershatter, 1997; Mann, 2011). After 1950, both male and female sexual relationships became subject to legal and public censure. And in the context of political campaigns to identify saboteurs of socialism, sexual infidelity or even premarital sexual intimacy could be grounds for punishing individuals as class enemies (Chan, Madsen, and Unger, 1984; Hong, 1997; Kang, 2005). Legal reforms initiated the “socialization” of marriage, but CCP economic policies that eliminated private ownership of land and capital created the enduring, institutional foundations for “socialist” marriages. After full collectivization and criminalization of private entrepreneurship, families could no longer accumulate substantial wealth. Henceforth, collective property Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 3 rights routinely trumped those of households and when young adults became members of work teams or employees of state enterprises,parental control over mate selection or even the timing of marriage also atrophied.A child's marriage remained a turning point in the life cycle,routinely triggering deci- sions as to whether or not to divide the household budget.But the marriage of a son or daughter no longer fulfilled the core,economic functions as it had when the economy was dominated by family farms and private commerce (Ocko,1991;Watson and Ebrey,1991). The socialist command economy was most fully realized in towns and cities and therefore urban family life was more fully "de-commodified"and "de-capitalized"than in villages.In the countryside,even during the high tides of the Great Leap Forward and the Cultural Revolution,families con- tinued to own their homes and village youth worked alongside their kin.By contrast,urban daughters as well as sons stayed in school until their mid- teens and then went directly to work in a state or collectively owned enter- prise.Apprenticeships in family stores and domestic service disappeared, and young adults spent little time under the close scrutiny of parents or net- works of extended kin.Moreover,not only did the structure of the urban economy weaken parental control over a child's future,it also tied the future well-being of married couples closely to their workplace (Whyte,1992). One of the clearest examples of this comprehensive reach of the socialist economy was the urban real estate system that transformed urban couples into "supplicants to a socialist state"(Davis,1993).In 1949,most families lived in privately owned accommodations which they owned or rented.But within a decade the majority of urban residents lived in publicly owned apartments.Couples waited in a housing queue at their workplace and the seniority and status of the head of household,usually the husband,deter- mined when and where they moved to a new home.Once they had acquired their new residence,rents took a tiny fraction of monthly income and life- time tenancy was guaranteed (Whyte and Parish,1984).Urban families effectively held use rights in perpetuity while for employers provision of housing was a social welfare benefit. Evolution of Post-Socialist Marriage The reintroduction of private ownership and re-legitimation of the profit motive after 1980 destroyed the core logic of the socialist economy.The impact on manufacturing and commerce has been well studied;the impact on marriage less so.Yet just as the ideological shifts away from the com- mand economy curbed state surveillance in the workplace,in a parallel fashion the CCP's endorsement of market transactions,privatization of Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 3 rights routinely trumped those of households and when young adults became members of work teams or employees of state enterprises, parental control over mate selection or even the timing of marriage also atrophied. A child’s marriage remained a turning point in the life cycle, routinely triggering decisions as to whether or not to divide the household budget. But the marriage of a son or daughter no longer fulfilled the core, economic functions as it had when the economy was dominated by family farms and private commerce (Ocko, 1991; Watson and Ebrey, 1991). The socialist command economy was most fully realized in towns and cities and therefore urban family life was more fully “de-commodified” and “de-capitalized” than in villages. In the countryside, even during the high tides of the Great Leap Forward and the Cultural Revolution, families continued to own their homes and village youth worked alongside their kin. By contrast, urban daughters as well as sons stayed in school until their midteens and then went directly to work in a state or collectively owned enterprise. Apprenticeships in family stores and domestic service disappeared, and young adults spent little time under the close scrutiny of parents or networks of extended kin. Moreover, not only did the structure of the urban economy weaken parental control over a child’s future, it also tied the future well-being of married couples closely to their workplace (Whyte, 1992). One of the clearest examples of this comprehensive reach of the socialist economy was the urban real estate system that transformed urban couples into “supplicants to a socialist state” (Davis, 1993). In 1949, most families lived in privately owned accommodations which they owned or rented. But within a decade the majority of urban residents lived in publicly owned apartments. Couples waited in a housing queue at their workplace and the seniority and status of the head of household, usually the husband, determined when and where they moved to a new home. Once they had acquired their new residence, rents took a tiny fraction of monthly income and lifetime tenancy was guaranteed (Whyte and Parish, 1984). Urban families effectively held use rights in perpetuity while for employers provision of housing was a social welfare benefit. Evolution of Post-Socialist Marriage The reintroduction of private ownership and re-legitimation of the profit motive after 1980 destroyed the core logic of the socialist economy. The impact on manufacturing and commerce has been well studied; the impact on marriage less so. Yet just as the ideological shifts away from the command economy curbed state surveillance in the workplace, in a parallel fashion the CCP’s endorsement of market transactions, privatization of Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Modern China assets,and reliance on voluntary contracts transformed familial and marital relationships.Under these conditions marriages became less like "social property”and closer to“personal property”(Ocko,l99l:319).Thus I would argue that the changes in the experience of marriage and in the state's policy of marriage since 1980 go beyond a retreat from the earlier role as social engineer and toward a more general "privatization"of the institution of marriage. In making this argument I am not adopting the vocabulary of legal schol- ars such as Cass Sunstein and Richard Thaler(2008)who advocate privatiza- tion of marriage as a correction to the distortions created when government licensing subsidizes one form of intimacy over another.Rather,I understand privatization of marriage as a process that follows from the state's redefini- tion of marriage as a voluntary contractual relationship grounded in individ- ual emotional satisfaction.One immediately observes this redefinition in provisions of the new Marriage Law promulgated soon after Deng's procla- mation of the Four Modernizations.Henceforth,whenever both spouses agreed that affection had completely broken down如感情确已破裂，the court had to grant a divorce (Marriage Law of the PRC,1980:Article 25).1 If only one spouse declared a complete breakdown of affection,the court was required to grant a divorce after mediation failed (Article 25)and no state agents could deny or delay a divorce on the grounds that the larger needs of the society trumped those of the individual happiness of an alienated spouse. The new law also abandoned the earlier provisions that had prioritized the needs of production over the claims of the married couple (Article 13), thereby signaling to the court and the community that personal preferences could trump the needs of the public economy. At first glance,it would seem that the one-child policy,first announced in 1979,contradicted the promise of the new Marriage Law to prioritize personal satisfaction and subjected a couple's most intimate life to increased state control.Yet if one distinguishes between marital fertility and sexual- ity,the contradiction becomes less stark.In 1978,the national leaders were convinced that only by mandating a dramatic drop in birth rates could they achieve "core regime objectives"(Greenhalgh,2008:xvii).However,if sexual intimacy did not lead to a birth,the state could (and did)treat it as a matter of personal choice protected by the right to privacy.In short,by delinking regulation of sex from regulation of procreation,the contradic- tion in the state's position toward post-socialist marriages become less salient.In fact,one could hypothesize that by making such a distinction, state agents were able to monitor procreation while reducing surveillance of sexual intimacies.In the Conclusion section,I will return to this contra- diction.But first let me now turn to a discussion of how economic,social, Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
4 Modern China assets, and reliance on voluntary contracts transformed familial and marital relationships. Under these conditions marriages became less like “social property” and closer to “personal property” (Ocko, 1991: 319). Thus I would argue that the changes in the experience of marriage and in the state’s policy of marriage since 1980 go beyond a retreat from the earlier role as social engineer and toward a more general “privatization” of the institution of marriage. In making this argument I am not adopting the vocabulary of legal scholars such as Cass Sunstein and Richard Thaler (2008) who advocate privatization of marriage as a correction to the distortions created when government licensing subsidizes one form of intimacy over another. Rather, I understand privatization of marriage as a process that follows from the state’s redefinition of marriage as a voluntary contractual relationship grounded in individual emotional satisfaction. One immediately observes this redefinition in provisions of the new Marriage Law promulgated soon after Deng’s proclamation of the Four Modernizations. Henceforth, whenever both spouses agreed that affection had completely broken down 如感情确已破裂, the court had to grant a divorce (Marriage Law of the PRC, 1980: Article 25).1 If only one spouse declared a complete breakdown of affection, the court was required to grant a divorce after mediation failed (Article 25) and no state agents could deny or delay a divorce on the grounds that the larger needs of the society trumped those of the individual happiness of an alienated spouse. The new law also abandoned the earlier provisions that had prioritized the needs of production over the claims of the married couple (Article 13), thereby signaling to the court and the community that personal preferences could trump the needs of the public economy. At first glance, it would seem that the one-child policy, first announced in 1979, contradicted the promise of the new Marriage Law to prioritize personal satisfaction and subjected a couple’s most intimate life to increased state control. Yet if one distinguishes between marital fertility and sexuality, the contradiction becomes less stark. In 1978, the national leaders were convinced that only by mandating a dramatic drop in birth rates could they achieve “core regime objectives” (Greenhalgh, 2008: xvii). However, if sexual intimacy did not lead to a birth, the state could (and did) treat it as a matter of personal choice protected by the right to privacy. In short, by delinking regulation of sex from regulation of procreation, the contradiction in the state’s position toward post-socialist marriages become less salient. In fact, one could hypothesize that by making such a distinction, state agents were able to monitor procreation while reducing surveillance of sexual intimacies. In the Conclusion section, I will return to this contradiction. But first let me now turn to a discussion of how economic, social, Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014
Davis 5 and legal changes in the second and third decades of reform further priva- tized the institution of marriage. Marriage in the Second and Third Decades of Economic Reform Rapid growth and institutional restructuring after 1990 intensified the ini- tial privatization and commodification of the economy.They also compli- cated the financial dimensions of marriage and increased the number of family disputes over property.Growth of family firms required courts con- fronting divorce or inheritance disputes to weigh the claims not only from the two spouses but also from in-laws and other shareholders whose prop- erty interests had not been salient during the first decade of market reform. Rapid privatization of urban housing stock and skyrocketing prices after 2000 ended urban housing as a welfare benefit (Davis,2010).They also promoted multigenerational investments into marital residences whereby in-laws could hold claims to a conjugal home equal to (or even stronger than)than those of a spouse.Rural families were not immune from these new pressures.But because rural families had built and owned their homes throughout the socialist era,the creation of a more privatized housing mar- ket did not create as dramatic a disjuncture as it did for urban families (Parish and Whyte,1978). A second and distinct source of disjuncture was a surge in geographic mobility.For most of the socialist era the hukou registration system tied adults to the county or city of their birth.and a first employer was often the last(Davis,1992).Over the first decade of reform,geographic mobility had increased,but migration did not routinely involve permanent relocation. Over the second and third decades of reform,however,migration acceler- ated and became less short-term.More than 200 million villagers left home and millions traveled to towns or factory zones thousands of miles from their parents and their ancestral villages.At the same time hundreds of thousands of Hong Kong,Southeast Asian,and Taiwan investors extended their sojourning in the People's Republic of China(PRC)and many became long- term residents.In the context of high levels of geographic mobility,the mar- ket for romantic and marital partners rapidly expanded and social norms that had constrained premarital and extramarital sexual relationships weakened (Shen,2008).Prostitution returned,premarital sex became normative,and divorce rates surged(Farrer,2002;Farrer and Sun,2003;Farrer et al.,2012; Huang et al.,2011;Osburg 2013;Parish,Laumann,and Mojola,2007;Pei, 2011;Yan,2003;Zhang,2011).Privatization of property transformed the Downloaded from mcx.sagepub.com at Yale University Library on June 12,2014
Davis 5 and legal changes in the second and third decades of reform further privatized the institution of marriage. Marriage in the Second and Third Decades of Economic Reform Rapid growth and institutional restructuring after 1990 intensified the initial privatization and commodification of the economy. They also complicated the financial dimensions of marriage and increased the number of family disputes over property. Growth of family firms required courts confronting divorce or inheritance disputes to weigh the claims not only from the two spouses but also from in-laws and other shareholders whose property interests had not been salient during the first decade of market reform. Rapid privatization of urban housing stock and skyrocketing prices after 2000 ended urban housing as a welfare benefit (Davis, 2010). They also promoted multigenerational investments into marital residences whereby in-laws could hold claims to a conjugal home equal to (or even stronger than) than those of a spouse. Rural families were not immune from these new pressures. But because rural families had built and owned their homes throughout the socialist era, the creation of a more privatized housing market did not create as dramatic a disjuncture as it did for urban families (Parish and Whyte, 1978). A second and distinct source of disjuncture was a surge in geographic mobility. For most of the socialist era the hukou registration system tied adults to the county or city of their birth. and a first employer was often the last (Davis, 1992). Over the first decade of reform, geographic mobility had increased, but migration did not routinely involve permanent relocation. Over the second and third decades of reform, however, migration accelerated and became less short-term. More than 200 million villagers left home and millions traveled to towns or factory zones thousands of miles from their parents and their ancestral villages. At the same time hundreds of thousands of Hong Kong, Southeast Asian, and Taiwan investors extended their sojourning in the People’s Republic of China (PRC) and many became longterm residents. In the context of high levels of geographic mobility, the market for romantic and marital partners rapidly expanded and social norms that had constrained premarital and extramarital sexual relationships weakened (Shen, 2008). Prostitution returned, premarital sex became normative, and divorce rates surged (Farrer, 2002; Farrer and Sun, 2003; Farrer et al., 2012; Huang et al., 2011; Osburg 2013; Parish, Laumann, and Mojola, 2007; Pei, 2011; Yan, 2003; Zhang, 2011). Privatization of property transformed the Downloaded from mcx.sagepub.com at Yale University Library on June 12, 2014