Law, Patriarchies, and State Formation in England and Post‐Colonial Hong Kong
| Published date | 01 June 2001 |
| Author | Carol A. G. Jones |
| DOI | http://doi.org/10.1111/1467-6478.00189 |
| Date | 01 June 2001 |
JOURNAL OF LAW AND SOCIETY
VOLUME 28, NUMBER 2, JUNE 2001
ISSN: 0263-323X, pp. 265–89
Law, Patriarchies, and State Formation in England and
Post-Colonial Hong Kong
Carol A.G. Jones*
The rise of the modern state is often associated with the demise of
particularistic ties and authoritarian patriarchy. Classically,
particularism gives way to universalism, patronage, hierarchy, and
deference to the `equalities’ of contract. But history is not a one-way
street nor is patriarchy all of one kind. Society’s legal arrangements,
structure, custom, power, affect, and sex swing back and forth between
values of distance, deference, and patronage and those stressing
greater egalitarianism in personal and political relations. Though they
vary in type, patriarchy and particularism as cultural systems do not
disappear but ebb, flow, and are revived, their oscillation driven by
particular economic goals and political insecurities.
Despite the predictions of many social theorists, in much of the world the
family (not the individual) remains the significant unit of political
organization. The ‘well-ordered’ family is often seen as ‘both the microcosm
and the basic unit of the socio-political order’.
1
Contrary to claims about
modernization’s ‘democratization’ of the family, this order has generally
remained hierarchical and patriarchal. Patriarchy is not, however, uniform.
Different kinds of patriarchy surface at different times, driven in part by the
realpolitik of state-building and particular economic formations. Thus, in
China, Stacey argues, the Communist Party did not see the patriarchal
peasant family as something to be eliminated but co-opted and transformed it
into socialist patriarchy.
2
In Hong Kong, meanwhile, laissez-faire
colonialism also favoured a form of patriarchy. Philanthropy – administered
via hierarchical ties of patronage, family, and fraternity – was preferred to
state provision of social welfare, and at a time when Hong Kong’s economic
‘miracle’ was being built on the back of low-paid and unpaid female and
child labour working predominantly in Chinese family firms, the patriarchal
265
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1 J. Stacey, Patriarchy and Socialist Revolution in China (1983) 30.
2 id., p. 185.
*Associate Professor, The Law School, City University of Hong Kong, Tat
Chee Avenue, Kowloon, Hong Kong
nuclear family served to subordinate the needs of individuals to the interests
of the family (and economy) as a whole. Male power over women and
children was thus supported by a political economy in which the family
‘retained a significant productive role’.
3
In this paper, I examine how governments made anxious by two different
kinds of ‘familial anarchy’ turn to different forms of patriarchy.
4
In the first
instance, ‘too much’ respect for family, clan, and patrinlineal relations leads
to the kind of powerful linkages of loyalty which threaten central authority.
This type of patrilineal patriarchy existed in Imperial China, where the
Confucian code prescribed fidelity to the patrilineage, a strictly hierarchical
ordering of family relationships, and condoned both the husband’s right to
force his wife into sexual intercourse as well as the father-in-law’s right to
rape his daughter-in-law. This type of extended patrilineal patriarchal family
is, I argue, particularly threatening to states-in-formation and/or those
experiencing a crisis of legitimacy. Rather than eliminating the patriarchal
family, however, history suggests that the state in Hong Kong and in
England, shifts towards a second form of patriarchy, that of the small or
nuclear family. Within this family type, deference is due to the husband and
father rather than to the extended lineage group. It is this form which is
associated with the neo-classical economic model in which property owners
and wage earners conduct business or household affairs without consulting
the larger kin group. Though the patriarchal nuclear family is more
egalitarian than the patrilineal patriarchal family, women and children
remain subordinate to the male head of household. The ‘right to rape’
remains but is now enjoyed solely by husbands. Laws designed to criminal-
ize marital rape are associated with the decay of this type of patriarchy.
Problematically, this decay is in turn perceived as heralding a second form of
‘family anarchy’, that is, ‘too little’ respect for family, elders, hierarchy, and
authority, and the production of ‘ungovernable’ and disobedient citizens
capable of disrupting political stability and labour discipline. This is how
current moves to criminalize marital rape are seen by the leadership in post-
colonial Hong Kong.
Coming at a time when the mainland government is attempting to re-
colonize the Hong Kong Chinese, the current critique of the marital rape law
represents a ‘little line’ of attack on the traditional family system, on the
leadership’s ‘Confucian’ values, and on Beijing’s attempts to reincorporate
the Hong Kong Chinese.
5
Resistance to gender subordination, encapsulating,
as it does, the opposition between conditional and absolute obedience, is
indicative of a larger critique of the social, cultural, legal, and political
structures of a society returning to authoritarianism and oligarchy.
266
3 id., p. 12.
4 The subsequent discussion owes a debt to Art Stinchombe, who brought these
arguments to my attention.
5 See G. Deleuze, foreword to J. Donzelot, The Policing of Families (1979).
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