| Recently, customary law has gradually become a hot spot of academic study, but problems existed in this study are also obvious, for it highlighted its function while at the same time separated the relationship between customary law and state law. In fact, to mid-Qing dynasty at the latest, almost all the minority areas in southwest China were under the legal control of Qing dynasty. Although the focus and degree of legal control are different, the legal system characterized by great unification has become an important external environment for the development of customary law in southwest areas. However, this external environment has not gained due attention in relevant study. In my humble opinion, studied customary law and its functions alone while underestimated or even ignored the influence of state law will result in one-sidedness of conclusion. Although having their own national characteristics, minority areas are part of China which known as a great unification country. What more, their national characteristics have no essential difference with "local knowledge" in other areas, all of those can be regarded as different expressions of "state" in different places. The little tradition displayed under great tradition was just caused by the different time when areas entered the great unification of country order and differences of multi-factors. For reasons mentioned above, the order of great unification and its decrees and regulations played an important role in studying legal culture and order in minority areas.It is because of above thoughts that this article takes system change as a main line, describes process which the state power carried out legal control after it entered Miao areas in Guizhou and gradually established its dominant order. This article explores and discovers the historic process of the central dynasty’s promotion of legal control and the responses made by local societies, analyzes respectively the historical evolution of state’s legal control and inherent customary law of villages and their interrelation, as well as the functions played by all walks of life in the building of region order.The research contents are as follows:The first chapter is mainly focus on the general situation of region order before the exploration of Miao areas. Most Miao areas in Guizhou belonged to "areas outside the boundary of legal control" before the reign of Yongzheng, where region order of society was maintained by considerable customary law. However, because of "difference in governance and subjection", there was no concrete record about customary laws in Guizhou in official history. The author describes their basic situation based mainly on some information reported indirectly by prefectures or counties in border areas and narrative recordings revealed by ancient songs and legends of the Miao nationality, as well as some research achievements about the Miao nationality in recent years.In second chapter, the author writes about the structural changes of social power around the Qing dynasty’s exploration of Miao areas in Guizhou. During the reign of Yongzheng. Qing dynasty promoted the policy of all clans into the han officials in southwest borderland while adopted the method of military force punitive expedition in Miao areas in Guizhou. It opened Xinjiang, set twelve administrative bodies at the grass-roots level such as Guzhou, Bazhai and Fengzhou County, Kaitai County, and sent officers to govern them respectively. Emperor Qianlong required that the outpost officers’governance in Miao areas should "be simple without complexity", demanded stability of regional governance and pointed out that the main responsibility of outpost officers was to maintain public order. However, according to relevant record, the early governance was loose and there was no actual control to be mentioned about. In order to control grass-roots society in Miao areas in Guizhou, power structure of "outpost officer—tuguan (hereditary posts of local administrators filled by chiefs of ethnic minorities)—the head—the Miao" was adopted in mid-Qing dynasty. After the uprising of the Miao during the reign of Qianlong and Yongzheng, the grass-roots society ruled by administrative bodies at the grass-roots level was hard to be controlled directly. Therefore, Qing dynasty took the measures of yi (a name for ancient tribes in the east) people administering yi, which meant to increase large number of tuguan who were loyal to Qing dynasty to assist outpost officers governing people. At village level, there was argument about the adoption of headman system and pao-chia system in the early years of Qianlong dynasty. Finally, the original headman system was maintained and people recognized the status of natural leader in villages. This kind of practice assured that the controlling degree of state’s public power on grass-roots society was limited while at the same time original culture tradition of minorities in Miao areas was maintained, which left a relatively broad space for the traditional social organization and original customary law to play their role in maintaining region order. The third chapter mentions about legal control of Qing dynasty in Miao areas in Guizhou, rationalizes the legislative skeleton of Qing dynasty in Miao areas in Guizhou and the implementation of relevant laws. The author believes that today’s research on Qing dynasty’s legislation is mostly focus on the so-called "national law" and unconsciously compared Qing dynasty’s legislation in Miao areas to those in other minority areas such as Mongolia, Tibet and Uygur Xinjiang. In fact, however, the political status of Miao areas, Mongolia and other minority places in Qing dynasty are different, we can not simply view legal control through "administration according to minorities customs".Laws that regulated the Miao who committed serious crime such as impeding governing order or attacking inbound areas were continue to be used after Miao areas were explored. However, there were disagreements on how to judge the internal cases among the Miao. Some advocated that all internal cases should be trialed by laws of Qing dynasty while others suggested that flexible jurisdictional principles should be promoted, for Miao areas in Guizhou had been explored only for a short time. However, the immediate outbreak of the Miao’s uprising during the reign of Yongzheng and Qianlong urged Qing dynasty to adopt relatively generous and soothing governing strategy. Beside the continuing usage of laws which regulated the Miao who committed serious crime such as impeding governing order or attacking inbound areas, there were specific provisions which stipulated that internal cases of the Miao were applied to the jurisdictional principles of original customary law. At the same time, in case the Miao collaborated with inland people, the law forbad inland people to enter Miao areas without proper reason and versa vise. However, scholars often ignored the rules issued in Twenty-seventh Year of Qianlong which stipulated that the Miao who shaved their hair and dressed the same with inland people would be treated equally with inland people, which meant the Miao who committed crimes would be punished in the same way with inland people who did them. These jurisdictional principles should be given enough attention. Dynasties thereafter continued to use the above legislations after they were established during the reign of Qianlong. The comparatively important legislation after Qianlong dynasty was the reaffirmation of rules which forbad inland people to enter Miao areas in Daoguang dynasty. For those inland people who already entered Miao areas, Daoguang dynasty strengthened management over them.Legal control of Qing dynasty focused on the punishment of the Miao who seriously endangered governing order. However, such kind of cases was hard to be effectively ruled at the initial stage of exploration. According to limited cases, it can be found that tendency of giving severe punishment to chief criminals (prescribed by law) while mitigating punishment on accessory criminals was existed. This way of punishment cracked down crimes and left no future troubles while at the same time prevent the situation from expanding. It was worth noting that there was "deviation" of "practice" by local government from the "expression" of central government’s power referring to the jurisdiction on the Miao’s internal cases. Local governor put restrictions on the usage of "Miao cases" and they had the power to address them at any time and in any way. For example, crimes of treason and heresy, incest were judged by laws of Qing dynasty rather than applied to "Miao cases". This kind of judgment played an exemplary role which facilitated the gradually penetration of some inland legal culture’s corresponding values into minority’s social life in Miao areas. Compared with the active jurisdiction on the Miao’s criminal cases took by aforementioned governments, lawsuits of the Miao contained more affluent information. Scholars studied on customary law often hold the view that people who are in the face of multiple laws and regulations will make their choice based on emotional identification. This kind of assertion sounded too arbitrary. As time goes by, even the people living in remote hinterland can hardly avoid the influence of official law. People began to understand how to use different systems to crack down on opponents rather than being limited by traditional methods when settled dispute.In chapter four, the author discussed the development of customary law under multi-cultural conflicts in Miao areas in Guizhou. The original customary law was contacted, collided and influenced by multi-culture after the exploration of Miao areas in Guizhou. The relevant influences on customary law, which predominantly embodied in the customary law of marriage, mainly came from two aspects:the regime reform of outpost officers and the influx of Han immigration. The changes of development of customary laws after the exploration of Miao areas in Guizhou mainly reflected in the following two areas:the spread of the Han characters facilitated the transition of customary law from unwritten to written, which enabled customary law to be handed down in a wider area and for a longer period. Moreover, the customary law gained development in becoming normal, logical and more like regulation; the changes of content manifested in three aspects. First, changes took place in customary law of marriage and family inheritance under the influence of ethics and values in the Han culture, such as abolition or limitation of cross-cousin marriage. Second, the content of customary law was increased for large number of new legal relationship appeared after the influx of migrants and economic development. Third, the authority began to act as the assurance of the implementation of customary law.In this chapter, the author explores the development and changes of customary law while at the same time points out that although there was convergence of this change and the national law at value level, the usage of customary law to keep region order still can be seen. Two reasons may account for this phenomenon:one is that the legal control mode of Qing dynasty in Miao areas in Guizhou left large space for the survival and development of customary law of Miao minority; the other is that although the dispute resolution mechanism became diversified after the exploration of Miao areas in Guizhou, most Miao people, for a variety of reasons, chose traditional method rather than resort to government. This phenomenon, which was recorded by people of the time in their notes or anthologies, was especially evident in inland Miao areas.In chapter five, the author refers to the development and changes of region order before and after the uprising of the Miao which lasted for eighteen years during the period of Xiantong, resulted in intense fluctuation of governing order in Miao areas in Guizhou. After the uprising was put down, although Qing dynasty adopted a number of measures to rebuild its governing order, Miao areas in Guizhou were still in turmoil. How to resolve the disorder problem, prescribe the right remedy for an illness and reassure people have become the primary issue of local community leaders and officials in Miao areas in Guizhou.The after-care regulations of made by Qing dynasty after it put down the uprising include cutting down the number of Tuguan and compiling in pao-chia in Miao society. Tuguan was the main force in mid-Qing dynasty used by Qing dynasty to control grassroots society in Miao areas in Guizhou, but people’s identification with the power of outpost officers changed a lot and tuguan’s power was seriously destroyed by the uprising. After the uprising, Qing dynasty removed large number of tuguan and the remaining tuguan has little power. After abolishment of tuguan, Qing dynasty adopted the policy of pao-chia in Miao society in order to "clear inside bandit", appointed old village headman as Bao-Jia Chang, established layer by layer mode of direct control. In this way, Qing dynasty strengthened its grass-roots social control in Miao areas in Guizhou. What corresponded to the pao-chia policy which aimed at "clear inside bandit" was the militia organization which functioned as defending the invaders and had a close relationship with the disorder before and after the uprising in Xiantong period. The author analyses the nature of militia organization through regulations of militia organization made by magistrate HuLinyi in Liping during the reign of Xianfeng and indicates that original Kuan (a social organization in Dong minority) still played an important role in society and the militia organization, in fact, was grafted on the basis of Kuan. This conduct was undoubtedly more easily recognized by the Miao, it maintained regional order while at the same time realized the expansion of state power toward grass-roots society.On the level of local society, the rise of gentry was one big change after the uprising of the Miao in Xiantong. No matter in front of local authority or of common people in villages, gentry had enough power that they played a vital role in maintaining local rule. The large amount of emergence of customary law in the form of treaty was also the product of social turbulence at the time around Xiantong in minority villages in Miao areas in Guizhou. This chapter studies the thread of gentry’s controlling over the grass-root society and their maintenance of region order through the research on the emergence of customary law mentioned above. Building covenant frequently was exactly the action took by social leaders like gentry who wished to regulate people through rules of regional community and to reform the internal rules to cope with the turbulent society. The enhancement of folk mechanism of dispute settlement was an important part of integrating regional rules and relative protocols also had regulations emphasizing folk settlement. Although the strengthening of folk system of building covenant implied the enhancement of regional autonomy, we should pay attention that the integration of region rules by local leader depended on government’s authority at a high degree and a huge part of establishment of protocols had to be permitted by local authority. Based on all these, we can see that the maintaining of region order at the time in Xiantong was not only performed by one party but by the interaction of much strength which can hardly be totally departed.The conclusion of this article is the summary of the previous chapters, which discussed the region order evolution process under the reign of Qing dynasty and the extremely complicate interaction between the government and civilians in the building of region order. Qing dynasty gradually established an effective governing rule through the implementation of relative laws, and in this process the official legal controls and rules gradually became localization in Miao areas in Guizhou. Besides, this article holds the view that after the exploration of Miao area, the customary law still played a big role in maintaining region order. However, the customary law was not the same as before. It was the outcome of multi-culture and was not necessarily conflicted with state law. We can say that minorities in Miao Areas still lived under the rule of customary law in late-Qing dynasty. However, we cannot deny that they lived in the order system which was established and confirmed by the government. In fact, it was through this method that Qing dynasty established its rule, and in this process, the official legal controls and rules gradually became localization. Meanwhile, the customary law of minorities in Miao areas had been given new interpretation and the dynasty rule gained its legitimacy. |
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