Legal Culture of Minorities' Customary Marriage in China: A Study of Mosuo's Walking Marriage

Abstract

In its long historical development, China’s nationalities have mixed and integrated to establish a ‘unity in diversity’. In their historical progress, the ethnic minorities developed customary laws, covering values, behavioural mode, etiquettes, customs, material carriers and symbol systems of their nationality. Customary laws of the ethnic minorities are an essential element of the minorities’ value system to survive and develop in society, and are a universal code of conduct and social order in the development history of human beings. With support from various convenient conditions such as customs, habits, folk rules and cultural heritage, customary laws of the minorities still play an important role in maintaining social order and regulating human behaviours in certain minorities’ areas, possessing strong vitality and continuous impetus of development. Compared to national laws, customary laws of the ethnic minorities are folk laws that are applicable to specific minorities’ areas. To protect and preserve the customary laws of the ethnic minorities under the contemporary concept of the rule of law, it is necessary to study the properties and characteristics of customary laws of the ethnic minorities as well as corresponding causes, aiming to find an appropriate way of inheritance and development. Therefore, customary laws of the ethnic minorities could coordinate with China’s national laws in practice. The rule of law could be promoted and social stability maintained in minority areas through the double track of philosophy and institution.

According to the Constitution of the People’s Republic of China, the system of customary law is regarded as an important part of China and shall be recognized as one of the main components of legislative resources. So, how to understand and treat customary law, especially the customary law of the ethnic minorities, inevitably becomes an important issue to be solved in the process of China’s legal reform. How to set up a perfect protection mechanism for the minority rights in China's regional national autonomous areas becomes a meaningful topic to provide a theoretical foundation for China to solve the problems arising from the current governance of the ethnic minorities’ regions. It carries great significance for the nation's long-term, stable, harmonious, sustainable development, for the improvement of relationships among different nationalities and for the maintenance of state unity.

Studying customary law along with the social and living customs of ethnic minorities in China is of importance to expand the research field of laws, enrich theories of laws, deepen legal studies and understand the correct handling of the inherent legal culture in China’s legal modernization. In fact, China’s inherent legal system consists of national laws and customary laws. Previous legal studies have focused only on national laws and have constructed theoretical frameworks of laws through annotations in code of the written laws. Such annotation of laws places more emphasis on technical exploration than on real life. In a sense, neglecting the existence and study of customary laws could be viewed as both the reason for and the consequence of the prevailing annotation of laws. Chinese legal studies have been based only on the social reality and have not always adhered to the Marxist principle of proceeding from actual conditions, resulting in outdated fruits, a narrow research field and old research methodologies. Studying the customary laws of ethnic minorities is conducive to expanding the research field and deepening legal studies. Comprehensive organization, exploration and inheritance of China’s inherent legal culture, including customary laws, have to be realistic and integrate into the real social life of the Chinese people.

Previous understanding and discussions on China’s inherent laws emphasize national laws and envisage that national law is equal to inherent law. This may not properly reflect the inherent laws and inherent legal culture in legal modernization. In fact, how to deal with the development of national laws is just one aspect of social development. At the current development stage in some ethnic minorities’ regions, how to treat customary laws and legal cultures of the ethnic minorities is much more important than how to apply the national laws. Special attention should be paid to the significance of induced changes to the development of the customary laws of ethnic minorities. As a kind of autonomous social order and rules, customary laws of minorities are closer to the life of the public and can impose a more profound influence and stronger behavioural control on the minorities than national laws.

According to practical situations in China’s traditional society, national laws are often virtual and abstract, while customary laws of minorities are real and can always guide and instruct the behaviours of all members in a particular ethnic region. The latter play a leading and direct role in social public morality and social norms. Ethnic customary law is consistent with the nature and the demands of social members in the minority areas, and thus has unique rationality different from national laws. To sum up, studying customary laws of minorities has remarkable significance. To achieve a balance between the state law and the customary law is not only necessary, but is also a topic with promising research space which can make a positive contribution to the protection of traditional minority cultures, legal construction in minority areas and the formation of a harmonious society.

Along the Lugu Lake side in Sichuan and Yunnan Provinces, the Mosuo matriarchal society still exists, and the traditional Mosuo religion and marriage customs have survived for around 2000 years. That makes this piece of land the most valuable target and research objective, as it is regarded as a ‘living fossil’ of a matriarchal culture and society. The native resources, such as Mosuo’s walking marriage custom, can provide us with a potential pattern and model to research, discuss, reflect and reconsider the relationship between national law and the customary law of ethnic minorities, as well as culture and value in the current human society.

China is a country with big regional and national gaps in political, economic and cultural development. Nowadays, China is progressing with each passing day, and economic system reform is the premise for constructing a modern Chinese society regulated by a legal system incorporating native resources. With the advance of globalization and modernization, legal construction in contemporary China is surely challenged by contradictions between national conditions and ideas, inherency and foreigner, localization and internationalization, locality and universality, etc. It is facing conflicts of deep cultural values and contradictions between development and cost. Customary laws of the ethnic minorities, an important component of the Chinese legal system and an important source of local laws and existing laws, are a typical expression of the interactive influences of the above factors. Therefore, how to understand and treat customary laws, especially customary laws of the ethnic minorities, will surely become an important topic that needs to be solved in the legalization process of China. It is very important for the sustainable development of ethnic nationalities, the unification of nationalities and the unity of the country to solve problems such as how to accommodate challenges of development and innovation in the new era; how to make theoretical studies of regional autonomy of ethnic minorities in China keep pace with times according to practical situations; how to provide policy advice on legal construction of the ethnic minorities according to academic research findings; how to promote and reform the legitimacy and protection of customary laws of ethnic minorities; to explore a suitable way for China to stick to and to improve the regional autonomy of ethnic minorities and the protection system for ethnic minorities’ rights and interests; and to make theoretical attempts to solve existing problems in China’s nationality work.

This research paper intends to pick out the minorities’ customary law of marriage as a breakthrough point, taking the Mosuo walking marriage system as an example through empirical studies in Luguhu village. This will be assisted by comparative studies on the history, administrative intervention, social impact and cultural change of Mosuo and Naxi marriage customs to help discuss, analyse, review and evaluate the meaning of the existence of ethnic customary law. The aim is to give suggestions and solutions for the preservation, maintenance, protection and legal reform of minorities’ customary law, and for promotion of the prosperity of ethnic minorities’ inheritance and culture. This research may also ensure that minorities’ customary law operates under the guidance of the spirit of the Constitution of the PRC. Nowadays, on China’s road to social transformation and upgrading, there is still a long journey for China from ruling the country by law to ruling the country according to the Constitution. This research on minorities’ customary law may also offer a gateway to a harmonious China and, further, a harmonious world.

Date of Award	13 Feb 2018
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	Mei Fun Priscilla LEUNG (Supervisor)