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ABSTRACT
Family law is an important constituent of law that deals with social relations within the family and the household. It regulates conflicts concerning marriage, divorce, child custody, adoption, inheritance and so on. During the Chinese Republican era (1912–1949), as a continuation of the practice in Imperial China, the settlement of conflicts emerging in the Uyghur domestic sphere was governed by Islamic law. In this article, based on several text corpora consisting of legal documents originating in southern Xinjiang (Khotan and Kashgar) from the Republican era, I will analyse the reasons behind such disputes and the final decisions made by Muslim judges. It will also touch upon women’s position in pre-socialist Uyghur society, the role of village elders and fathers-in-law, patterns of dispute settlement, the influence of the different forms of divorce, and the parameters for further research on the texts.
Acknowledgements
I would like to thank Ildikó Bellér-Hann and Eric T. Schluessel for their valuable comments on earlier drafts of this article.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 The manuscript belongs to the Martin Hartmann collection in the Orient Department at the Berlin State Library in Germany. It is dated to 1892 and now under the shelf mark of Ms. or. oct. Citation3296. The manuscript consists of 21 sheets in black nastaʿliq.
2 Temporary marriage was viewed as a practical and expedient form of marriage for men living away from their home for a longer period of time. It could be contracted by a man, with the period and the amount of money to be given to the woman fixed in the contract (Bellér-Hann Citation2008, 266–71; Benson Citation1993, 242–44).
3 Here the transliteration of Arabic, Persian and Uyghur terms in Arabic script follows mostly the IJMES system.
4 This collection consists of more than 150 legal documents from Kashgar, Khotan and Kucha, which pertain to civil disputes such as divorce, lease, rent, child custody, real estate and inheritance.
5 The De Jong collection comprises 29 manuscripts from Xinjiang (in Arabic, Persian and Uyghur), mostly on religious subjects. They were acquired by the Leiden University Library in December 2009 from Professor Frederick de Jong, who had bought them in Xinjiang during visits between 2001 and 2008. In 2015, the library acquired a second collection from de Jong consisting of 34 legal documents of varying sizes on indigenous paper in Uyghur and some in Chinese, originating from Xinjiang and dated between 1850 and 1963. Most of the documents are on land ownership or lease, real estate, inheritance and divorce.
6 The Sugawara Collection consists of more than 600 legal documents from Xinjiang housed at the Xinjiang Minority Nationalities Literature Research Base, School of Humanities, Xinjiang University.
7 For place names in Xinjiang, I follow the established usage.
8 The untitled manuscript is a collection of legal pronouncements in Islam, which were issued by a religious specialist about specific cases. It is based on the Zubdat al-masāʾil wa ʾl-ʿaqāʾid by Muḥammed Ṣādiq Kāshgharī, the author of Tadhkīra-i ʿazīzān. The manuscript matches the Majmūʿat al-masāʾil of the Kashgar Museum and probably the complete version of it. The manuscript, which belongs to the De Jong Collection, was copied in 1871 in Xinjiang and is now held at Leiden University Library on shelf or. 26. 684. It is in black nastaʿliq with rubrics in red.
9 There is no direct information about the place of origin of these documents from the De Jong Collection. Comparisons with place names from Kashgar and Khotan remain inconclusive. However, it is possible to identify their origins through differences in how writers from Kashgar and Khotan composed such documents. In the Khotan documents, the date typically included not only the Hijri calendar but also the 12 zodiac signs of the Sino-Turkic animal calendar, which are not found in the documents from Kashgar. The animal calendar is an old Turkic tradition, and its perpetuation can be attested in manuscripts from Khotan, Kucha, Qumul, Yarkand and Turfan.
10 The sar is the traditional monetary unit. In 1930 a man from Awat near Kashgar could arrange a marriage for five sars (Mäkhsut and Helimhaji Citation2015, 386). Pul is from Pers. pūl ‘money’ (Steingass Citation2005, 260b).
11 The ‘good people’ are the mediators from the village, who try to reconcile the two sides and present a settlement proposal. Such ‘good people’, whom we might expect to belong to the realm of ‘customary law’, were involved at the qāḍī court.
12 Khät bär- ‘to give the letter’ means in Uyghur ‘give the letter of divorce.’ Yakup and Ghäyrurani (Citation1990–Citation1999) II, 426b.
13 Bir tartim pakhta ‘a measure of cotton’ would probably be 4–5 kilos of cotton. Yakup and Ghäyrurani (Citation1990–Citation1999) II, 27b: tartim jiŋ, girlarda bir qetim tartishqa bolidighan närsä ‘the things, which can be weighed only once.’ It was given to her as a part of her maintenance.
14 Koychän from Chin. kuai qian 块钱 ‘basic unit of money in China’ (Wu Citation1979, 397b).
15 Mochän from Chin. mao qian 毛钱 ‘a fractional unit of money in China’ (Wu Citation1979, 459a).
16 A charäk was 9.9 kilos at that time, so 12 charäk bughday would be 198.9 kilograms (Mäkhsut and Helimhaji Citation2015, 205–07).
17 The line is from kitabi ṭalāq avvalqi fäṣil (first chapter of a book of ṭalāq) in Majmūʿat al-masāʾil. Page number is missing.
18 Nikaḥ means the traditional Islamic marriage ceremony.
19 The original text reads: ṭalāq baīn däp nikaḥ qilmaghunchä qidikä kirgüzgäli bolmaghan ṭalāqni ayturlar; bir yoli üch ṭalāq qilmaghay, żarur bolmay ṭalāq baīn qilmaq makrūhdur.
20 Süt häqqi means the mother’s childcare allowance, or ‘breastfeeding allowance’ (Yakup and Ghäyrurani Citation1990–Citation1999, III, 629a). The term occurs in old Uyghur legal documents as süt sävinči (Mirsultan Citation2016, 128). However, it is still in use by Uyghurs from Turfan.
21 Chir- as an example of Kashgar dialect means ‘to get in; to come in’, and the equivalent is kir- in central dialect (Yakup and Ghäyrurani Citation1990–Citation1999, IV, 564b). Käynigä chir- means ‘to follow somebody’.
22 I will discuss child custody in another article.
23 A unit of silver money (Yakup and Ghäyrurani Citation1990–Citation1999, II, 175a).
24 Altinchi fäṣil är khatunni qoyar bolup, kabinniŋ badalidä ikhtiyar ṭalāqni berip mäẓlum özini ḥarām qilghanniŋ bayānī (Chapter Six: Concerning when a man determines to divorce his wife and to give her a volitional ṭalāq with a marriage-portion as a compensation, and his wife has made herself sinful).
25 The original text reads: Ägär kirmärsä mäẓlumäsi birlä muvafaqatlik qilalmasa, andaghki khuda-i taʿalla maẓlūmägä buyrughan ḥaqni är bäja kältürälmäy khäddi yoqtur. Ḥär nimärsägä maẓlūmniŋ kabinghä ṣalaḥiti bolsä kabinghä badal qilip maẓlūmni qoymaghliq. Mundaq ṭalaqni khulʿ derlär. Vä ägär mukhalifät maẓlūm ṭäräfidin bolsä maẓlūm kabinghä badal qilip ṭalaqghä ikhtiyarni qilip maẓlūmgä bärmäklik här ikki-la ṣürätdä ṭalaq baīn bolur vajip bolur. Ol maẓlūm erigä badal-i khulʿ-ni bärmäklik .
26 Elsewhere in Central Asia, the aqsaqal (community elder, local notable) was not only an arbitrator in such cases but also held an official administrative position, providing ‘donative liability’ to individuals who confessed to felonies such a murder and robbery. Thus, aqsaqals also provided police services in Central Asia (Sartori Citation2016, 88).
27 Yakup and Ghäyrurani (Citation1990–Citation1999, II, 569b–570a): ayrilmaq, qutulmaq, juda bolmaq.