A prevalent image of China, both historically and in recent times, has been that of a civilization spared the malady of too many lawyers that is said to beset the United States and growing numbers of other nations. For better or worse, so such thinking goes, China has sought to address its problems primarily through reliance upon morality, custom, kinship or politics, rather than formal legality, with the result that there has been relatively little need for individuals whose work lies in the law. No wonder that it was Shakespeare, rather than a Chinese author, who gave voice to the much-cited, if arguably misunderstood, call to “kill all the lawyers first.”

This article examines developments in the family law of post-Mao China. The expansion of the legal regime governing Chinese family life during the past 15 years has been extremely rapid and represents an important legal advance, although to some extent the developments are old wine in new bottles - a reconstruction in legislative form of pre-existing administrative norms already governing family life. In addition, the article necessarily considers a number of significant tensions or contradictions that have become apparent in PRC family law over the past decade or so.

At one level the post-Mao growth in the corpus of family law has a fairly clear meaning. The 1950 Marriage Law and the system of family law which it attempted to put into place were important elements in the generation of political support for the new regime. However, in the post-Mao era the rapid codification of family law has been in large part prompted by the leadership's concern to ensure stability, order and continuity in social life. In addition, the family has once more been installed as the basic unit of social life, a position enhanced by the declining social significance of the danwei or unit. The law has therefore been used to reshape the family in order to make it more consistent with the new economic and social orders being created in the era of reform. There is also a concern to strengthen the rights and interests of the socially vulnerable, and this too has influenced certain areas of family law.

Among the various classes of legal documents which have become publicly available in China in recent years, few are more interesting than the growing body of reported decisions by courts and other institutions. Usually resulting, directly or indirectly, from litigation or some similar process, these interpretative rulings and decided cases have appeared in increasing numbers in the nine years following the first publication of the Supreme People's Court's own gazette. Since then a number of general collections of judicial interpretations and abstracts of court decisions have been brought out, some of which pre-date the Cultural Revolution. The Supreme People's Court now supplements its gazette with periodical collections of reports of cases, and more specialized collections of interpretations and cases have been published to meet various specific needs, academic and professional.

Access to material of this kind on a larger scale than hitherto sheds light on various aspects of the Chinese legal system itself which for foreign observers were previously obscure. Moreover, although most of the cases and decisions which are published emanate from the higher levels of the legal hierarchy, they bring the reader closer both to the practical workings of the legal system and to the thought processes which guide it.

The question which inevitably arises is whether these newly available materials should be regarded as providing more than just a heightened awareness of the dynamics of Chinese society and its legal system. Outside China, the study of Chinese law is increasingly regarded not merely as a discipline for the description and analysis of a specialized category of Chinese institutions, but more importantly as a source of detailed prescriptive norms of the kind expected from legal systems in the world as a whole.

In both Western and Chinese Communist historiography, the “Yan'an Way” has become tangled up in the Mao legend, and it has suffered accordingly. An aim of this article is to peel back the Maoist crust and re-examine the workings of the Yan'an Way during the period when it was developed, and in two different parts of the Yan'an base (the Shaan-Gan-Ning Border Region), the place from which the model was launched in the early 1940s. The subregional comparison is used to show that, in different sociopolitical contexts, the Yan'an Way worked quite differently, and that results in only one place provided material for the construction of an heroic legend. The rural co-operativization drive of 1943–44 is made the special focus of this study because it was a key component of the Yan'an Way and subsumes many of its most characteristic features.