1397: The Great Ming Code (大明律)

 

Most comprehensive legal framework in Chinese history

Emperor Hongwu (洪武帝朱元璋), at 16 years old, witnessed his parents and siblings dying from starvation. In order to survive, he became a wandering monk, begging for food. At 25, he joint and eventually lead a peasant revolt and became the founding emperor of Ming dynasty. [Public Domain]

 

Emperor Hong-wu (洪武大帝, reign 1368–1398), founder of the Great Ming Dynasty, led troops in driving the ruling Mongolians out of the country. The Yuan Dynasty, ruled by nomads with little knowledge about governing, was relatively chaotic in terms of its legal system — and Emperor Hong-wu criticised his predecessors' incompetence in this regard.

When Emperor Hong-wu rose to power, he swiftly implemented the most extensive and complex legal codification in Chinese history, known as the Great Ming Code. The code was based on Legalism, a Chinese philosophical school of thought, which greatly revolutionised the Chinese justice system.

The Great Ming Code was first drafted in 1373, and it was completed two decades later in 1397. The code was applicable to all parts of life, as it attempted to bring order and structure to political, economic, military, familiar, ritual, and legal affairs.

The formation of this extensive piece of legal work was a significant turning point in Chinese history; it re-enforced and legitimised specific Chinese values and established new ones that the emperor thought was important. This fundamental value system galvanised social norms and adjusted social stigma to reflect new conventions.

This Law code became so ingrained in Chinese society that the Manchus kept it after conquering China and establishing the Great Qing Dynasty.

 
 

Article 122, Marriage of Mongols and Semuren

 

The Great Ming Code covered all aspects of Chinese society — political, social, and economical.

There were also plenty of clauses aimed at re-defining convention and stigma regarding the family; this, according to them, would help to establish necessary boundaries and enhance social life.

Article 122 in the Great Ming Code was particularly relevant to the Kaifeng Jewish community, as the article concerned itself chiefly with the transformation of non-Han Chinese into Han Chinese.

The historical context in which this clause existed is crucial to understanding its origins. For the preceding century, the Chinese people were governed almost entirely by foreigners, the nomadic Mongolians. Therefore, when the Great Ming Dynasty re-established control over China, they were keen to rid the country of foreign influence — and reduce the remnants of Mongolian rule, including the 100,000 Mongolians living in Beijing alone. This meant that the Great Ming Code was drafted with xenophobia in mind, even if intentions were to right a wrong.

Article 122 mandates compulsory intermarriage between Mongols, Semuren (people with coloured eyes, meaning foreigners), and the Chinese. Muslims and Jews are not explicitly mentioned, likely because they were not the primary groups of foreigners the Chinese were concerned with and because their population was negligible.

Although the clause is authoritarian in that it dictates the terms of marriage and prevents foreign communities from living intimately amongst themselves, Article 122 did, to some extent, show concern for personal autonomy and liberties. For example, the clause indicates that, in every marriage, "It is essential that both parties be willing." Simply put, Mongolians or Chinese people who did not want to intermarry did not have to get married; while the law would punish people who broke off engagements or tried to dissolve their existing marriages, refusal to get married in the first place was deemed perfectly acceptable in the eyes of the law.

Article 122 seems to create a dilemma, for its clauses are contradictory: how can a piece of legislation mandate someone to get intermarried but also give them the right of refusal? Enforcing this section of the Great Ming Code was seemingly impossible. If the officials did try to implement it, they would be presented with a dichotomy: (i) citizens entering unhappy and involuntary marriages or (ii) citizens living their entire lives without getting married.

The point of this piece of legislation was to catalyse integration and assimilation. This created a fascinating dynamic captured succinctly by Maria Jaschok in The History of Women’s Mosques in Chinese Islam: A Mosque of Their Own. She wrote, "If a non-Muslim married a Muslim, they were under pressure to convert to Islam. As it was an accepted patriarchal norm that a woman must obey her husband, Muslims raised fewer objections to men marrying Han women than their own daughters marrying non-Muslims. If a female Muslim did marry a Han, her husband was obliged to convert to Islam. In the Ming Dynasty, a Han with a high social status would not allow his daughter to marry a Hui since this entailed a collective diminishing of status. Also, only the poor and low-class Han males would countenance such a marriage, which was the majority of cases where Han males had converted to Islam since the Ming Dynasty decrees were issued. Gradually, Islam, originally a religion prevalent among members of the upper class, was turned into a religion of the poor and the dispossessed."

Although Maria Jaschok wrote this of the Muslims in China, this is equally applicable to the experience of the Kaifeng Jews in the face of Article 122.

 
 

Content of from Article 122

 

Marriages by Mongols and Semuren (蒙古色目人婚姻).

Mongols and Semuren shall marry with Chinese persons (凡蒙古色目人,聽與中國人為婚姻).

It is essential that both parties be willing (務要兩相情願).

They shall not marry within their own race (不許本類自相嫁娶).

Any violations shall be punished by 80 strokes of beating with the heavy stick (違者杖八十).

Both the men and the women shall be enslaved by the government (男女入官為奴).

If Chinese persons do not wish to marry Qincha Muslims, the latter may marry with each other among their own race; the above prohibition shall not be applied (其中國人,不願與回回欽察為婚姻者,聽從本類自相嫁娶,不在禁限).

 
 

Impact of Article 122

 

Article 122 contributed to the Sinification of the Kaifeng Jews during the Great Ming Dynasty. At the beginning of this period, the Kaifeng Jews were physically distinct from their Han Chinese neighbours who had entirely different facial features and a rigid set of Jewish practices; however, by the end of the Dynasty, the Kaifeng Jews were physically far more Chinese, and they retained fewer Jewish practices, traditions, and teachings.

The following excerpt gives more detail into the process of assimilation prompted by intermarriage legislation. It was written by the author of this book, Nicholas Zane, in a research paper investigating the factors that contributed to the loss of the Jewish identity during the Ming Dynasty:

Article 122 had a significant impact on the community’s loss of Jewish identity for a variety of reasons. Jewish men quite willingly married Han Chinese women, because the patriarchal structure of China implied that she would have to adopt his culture, rather than vice versa, and thus potentially convert to Judaism. However, this was problematic because Judaism is matrilineal, meaning that, in the strictest sense, their offspring would technically be gentiles. Moreover, such a marriage would contribute to the dilution of Jewish culture because Ming Chinese society, largely influenced by Confucius’s meritocratic teachings, had a degree of social mobility, meaning that anyone could rise to prominence by passing the Imperial Examination and joining the civil service. The potentially life-changing exam tested knowledge of the arts and in military strategy, civil law, revenue and taxation, and agriculture and geography but, above all, the exam emphasised proficiency in the Confucian classics, including the Analects (论语). This meant that many Chinese-Jewish couples — in order to maximise their children’s chances at passing the Imperial examination — would be more likely to teach their children about the teachings of Confucius and Lao Tzu rather than, say, that of Moses and Ishmael.

Guo Yan, a current member of the Kaifeng Jewish community has explained that, because of the patriarchal nature of Imperial China, males were chiefly the breadwinners of the family whilst females were typically homemakers who raised the children; therefore, even if the parents were keen to teach their children more about Judaism, despite this meaning having to relinquish potential access to civil service, it would be difficult because the Jewish father would be working during the day whilst the Chinese mother simply would not have sufficient knowledge about Judaism to give the children a proper Jewish upbringing.

And most parents would be reluctant for their Jewish daughters to marry non-Jews, because this meant they would have to adopt their husband’s gentile practices that would defy Talmudic law, for instance failure to observe the Sabbath. Thus, trends in Kaifeng showed that, in order to simultaneously adhere to the intermarriage law as well as the Talmudic law, Jewish women would typically marry Muslim men who had similar ways of life, for instance their abstinence from pork consumption. However, the similarities with Islam also made instances of Jewish women converting to Islam quite frequent.