Pursuing Rights and Getting Justice on China's Ethnic Frontier, 1949-1966
Diamant, Neil J., Law & Society Review
This article explains how minority women in rural China managed to use state legal and political institutions to obtain a divorce, despite numerous obstacles. Beginning with a legal controversy over why women from the Yi minority were going to court for "fun" and then divorcing their husbands, I proceed to look at the many factors that may have contributed to divorce in rural China, such as state ethnic policy, generational empowerment, culture, and the role of community in mediation and collective action. While such factors were influential, I argue that women's divorce in Yunnan was largely the result of a particular, time-bound confluence of revolutionary political forces that were unique to China, and not the direct product of the law or ethnic culture and status.
A Legal Controversy in Rural China, 1956
It seemed like just another ordinary fall day in a village of the Yi minority community in Yunnan Province, on China's southwestern border. As the sun rose over the glistening fields, families woke up and began their chores. Sometime later, their tasks completed, several young women, laden with recently harvested produce, met in the village square to go to the market town, as was their custom and duty. This was not an easy trip: Yunnan was a poor, mountainous province with few paved roads, railways, or motorized transport.
After walking for several hours, they arrived at their destination. The market town, located in a valley, was bustling with peasants who had streamed down from mountain villages. The sounds and smells of donkeys, goats, squealing pigs, and terrified chickens filled the air as the women took up their positions on the roadside to hawk their produce. By early afternoon they were finished. Their responsibility fulfilled, and with some free time on their hands before their return trip, the women decided to wander a bit. Passing through the town's main thoroughfare, they saw the gated building of the county's political administration. Nearby was the court. Noticing a crowd gathered inside, the women decided to see what was going on. This activity, a cultural practice known as kan renao, or "getting in on the fun," was not entirely novel, as rural folk in the area (as well as in others) had been known to "gather around" any event that broke the monotony of life and promised free entertainment for a while (Perry 1993). On this particular occasion, the Yi women were witnessing several divorce cases. Taking in this scene, some of the Yi women who had come to town to market their produce decided that they, too, wanted a divorce. They approached the clerk and the judge and demanded a divorce on the basis of the People's Republic of China's 1950 "Marriage Law," which allowed divorces if marriages were "arranged" or "coerced" by parents or other members of the community. The Yi women testified that indeed their marriages had been coerced, and this gave them the right to divorce
The court granted their requests, despite the fact that their husbands were not present in court. Their divorce papers in one hand and the money they received from selling their produce in the other, they made their way back to their village. Upon arrival, they presented their husbands with the divorce papers. Aghast that their wives had divorced them, the aggrieved husbands marched off to complain to their local officials. The local officials were also incensed, and worried that if village women could divorce so easily, soon the village would be left without any young marriageable women. The courts, they complained, decided cases in a "rash and careless" manner. This problem was compounded, they argued, because the Yi minority is particularly litigious and prone to divorce. Courts, however, were not convinced that this was correct, and proposed a political explanation instead: Yi women were divorcing because their "consciousness had been raised." A court also noticed that "the more we intervene, the more divorces there are" (CXA 16-27-A1:2). …