I was reading Phan Ngọc’s The Characteristics of Vietnamese Culture (Bản sắc văn hóa Việt Nam, 1998) and came across a passage where the author was talking about differences between Vietnam and China by referencing the supposed higher level of autonomy that Vietnamese women had in the past in comparison to their Chinese sisters.
In making this argument, Phan Ngọc claims that a Lê Dynasty-era legal code stated that “If a husband without children abandons his home for five months, or one year if he has children, then the wife has the right to marry another man.” (Người chồng bỏ nhà ra đi năm tháng nếu không có con, một năm nếu có con, thì người vợ có quyền lấy chồng khác.) [pg. 241]
I’ve heard arguments like this one many times. There have been numerous Vietnamese and Western scholars who have examined premodern Vietnamese law codes and have tried to argue that they demonstrate that there was greater autonomy for women in premodern Vietnam than in premodern China.
The legal code in question here is the Quốc triều hình luật, also known as the Lê triều hình luật, and colloquially referred to as the Luật Hồng Đức. I’m not sure if Phan Ngoc based his understanding on the original Han text or a translation, but if you read the original, it becomes very clear that this passage does not talk about any kind of “women’s rights.” To the contrary, it is about “men’s rights to women.”
Here is the passage and my translation of it:
諸夫疏其妻五月不親往來者，（聼告所在官司，及社官為憑）失其妻，有子息，聼一年，公差遠行，不用此律，若以放妻，而再捕後娶者，以貶論。
“Any husband who has neglected his wife and has not had personal interactions [with her] for five months (following, as evidence, a report made to the local authorities) will lose his wife. If there are children, then the period is for one year. For those who travel far away on official business, this law does not apply. If someone has released his wife but still prevents [literally, ‘detains’] others from later marrying [her], this will be censured.”
The first sentence in this passage corresponds to the comment that Phan Ngọc made. However, contrary to Phan Ngọc’s claim, nothing is said here about the wife having the right to remarry (vợ có quyền lấy chồng khác). All it says is that if a man abandons his wife for 5 months, or a year if there is a child, that he loses his wife (失其妻, thất kì thê).
What is clear from the wording here is that this law is “male-centric.” It is saying that if a man does not maintain relations with his wife, that she then becomes “available” for another man to marry. The final sentence makes this even clearer where it says that for a man who has “released” his wife (meaning “divorced,” or in the case of a man who has abandoned his wife for 5 months, relinquished authority over her), he cannot prevent another man from marrying her.
The one part of this law that is a bit ambiguous is the part that I have put in parentheses (it is in a smaller font in the original, which indicates that it is a note added to the text, and that is why I put it in parentheses):
“Any husband who has neglected his wife and has not had personal interactions [with her] for five months (following, as evidence, a report made to the local authorities) will lose his wife.”
In the original, it is not clear who makes such a report as no subject is indicated. What that passage indicates, however, is that the local authorities must have evidence that there has been no interaction between the husband and wife for 5 months (or one year if they have a child).
While there is no subject in the Hán version of this law, the modern Vietnamese translation adds a subject – the wife – and states the following:
“When a husband is distant from his wife and does not return to her for 5 months (then the wife gains the right to report to the local officials to produce evidence), then the husband loses the wife.”
There is nothing in the wording of this law to indicate that the wife is the person who would report to local authorities about a husband’s absence. It is equally (or perhaps more) possible that the person who would have reported to the local authorities would have been another man in the village who wanted to marry a woman whose husband has been absent, or the parents of the woman who wanted to marry her off to another man. Nonetheless, this is how this law has been translated into modern Vietnamese, and this is how it has been explained.
The Wikipedia page for the law code that this law appears in, for instance, comments on this particular law by stating that:
“With such a regulation, the rights of women were protected, and even more importantly, it became a foundation for husbands to treat their wives and families well. This is a regulation that highlights and reflects the creativity of the people who made the law to maintain stable conditions in families.”
“Quy định như vậy quyền lợi của người phụ nữ đã được bảo đảm và quan trọng hơn nó cũng trở thành cơ sở để người chồng phải thực hiện tốt nghĩa vụ của mình đối với vợ, với gia đình. Đây là quy định nổi bật phản ánh tính sáng tạo của nhà làm luật nhằm duy trì trật tự ổn định trong gia đình.”
This sounds beautiful, but like the comment that Phan Ngọc wrote, it does not reflect what is actually written in the Quốc triều hình luật.
What is written in the Quốc triều hình luật is male-centric. It says that a man will lose his wife if he abandons her and that he cannot prevent another man from marrying her should she be so “released” from his authority.
Again, this is not a law that reflects “women’s rights,” but instead, “men’s rights to women.”
That of course does not sound as beautiful as what Phan Ngọc wrote, or as what is on Wikipedia, but the past isn’t always beautiful. . . And that’s why we’re supposed to learn from it.
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In a book chapter entitled “Beyond the Myth of Equality: Daughters’ Inheritance Rights in the Lê Code”, Trần Nhung Tuyết has similarly argued that a critical review of the Quốc Triều Hình Luật would reveal that it was far less protective of a woman’s rights than is generally believed.
She also provides a telling explanation for the origins of this belief as well as its durability:
“The reification of Vietnamese womanhood and its relationship to the Lê Code emerged out of a debate among French colonial scholar-officials about legal reform. To demonstrate the colony’s readiness for French civilization, these scholars equated the Lê precepts with an indigenous, almost noble-savage tradition that did not distinguish between males and females. Nationalist scholars adopted this construction to demonstrate Việt Nam’s readiness for modernity, and Western academics perpetuated it to support their claims about its historical identity, whether uniquely national or reflective of regional cohesiveness.”
Even more telling is the indication by Trần Nhung Tuyết that her own inquiry into inheritance rights of Vietnamese women under the Lê Code draws its inspiration from historical studies on Chinese women’s property rights, which have demonstrated “that in the Tang through the Ming periods, women enjoyed customary and legal sanctions of their property claims with male heirs.” 🙂
Thanks!! Yes, when I wrote this I was well aware that Nhung Tuyet Tran has an article in which she talked about how the Le Code doesn’t say the things that later people have said it does (I haven’t read the book yet). I actually came across this topic in a Chinese PhD dissertation, and at first I was thinking of saying “I was reading a Chinese PhD dissertation in which the author mentioned something that Phan Ngoc wrote about which is also a topic that Nhung Tuyet Tran once wrote about. . .” But then I said, “no, that’s too complicated.” But you are right, so thanks for bringing that up.
The comment about Chinese history is dead on the money. The idea that “Vietnamese women” have had more autonomy than “Chinese women” is based on an (uninformed) imagined idea of an unchanging Chinese reality. The reality, however, is that there was a lot of change over time.
As for the French role, I think that deserves an entire study. I don’t think French legal or colonial scholars really cared all that much about Vietnamese women or Vietnamese in general or in demonstrating “the colony’s readiness for French civilization.” The one thing they did care about was having legal control/power, but that was difficult to obtain because the Nguyen Dynasty was still in power. In Cochinchina they were able to implement their own laws in the nineteenth century. In Tonkin they started to make some changes in the 1920s and promulgated a Tonkinese Civil Code in the early 1930s, but throughout all that time period the Gia Long Code continued in effect in Annam.
In her article, Nhung Tuyet Tran mentions a comment that Charles Maitre made in a book review in 1908 that “the only way in which the Annamites have demonstrated their incontestable superiority over the other peoples of the Far East rests in the rank that they have given to women, roles [which] were almost equal to men’s rank: the laws of the Lê [dynasty] confirm this [observation].”
Yes, that comment is there, but it is made in a passage where he is critiquing the Gia Long Code as a “hastily drafted” and “overly-Sinitic” law code. (see the long quote below) This seems to have been the primary interest of some French colonial officials. They needed a way to push aside Nguyen Dynasty authority, and demonstrating that Nguyen law was an artificial import was one way of doing that. I think this is a point that we tend to miss because it falls inside this big “blind spot” I think we have in thinking that the Nguyen Dynasty didn’t continue to be important/influential after the French conquest. It was!! And that’s what Maitre was trying to counter.
In the process of drafting the Tonkinese Civil Code that same connection between women in the Le Code and the problem with the Gia Long Code, came up again (cited on page 30 of this book): https://gallica.bnf.fr/ark:/12148/bpt6k9799226q.r=La%20femme%20annamite%20du%20Tonkin%20dans%20l%27institution%20des%20biens%20cultuels%20%28?rk=42918;4):
« Toutes les dispositions concernant le mariage s’inspirent de la coutume qui a toujours été beaucoup plus libérale et beaucoup plus humaine que le Code de Gia-Long relativement à la condition de la femme, et dont l’évolution n’a fait que s accentuer dans ce sens sous l’empire des idées occidentales et des besoins de la vie moderne. Néanmoins, le texte maintient l’autorité patriarcale dans tout ce qu’elle n’a pas d’abusif ni de contraire à l’état de choses actuel… »
Which my friend Google Translate says means:
“All the provisions concerning marriage are inspired by the custom that has always been much more liberal and much more humane than the Gia-Long Code in relation to the status of women, and whose evolution has only been accentuated in this sense under the Empire of Western ideas and the needs of modern life. Nevertheless, the text maintains patriarchal authority in all that it has no abusive or contrary to the current state of affairs… »
If “ready for French civilization” means “good enough already, so we don’t need to change things,” then yes, I would agree.
That said, the more I study about how ideas emerged in the 20th century, the less influential I find these high-level official French ideas to have been. I don’t think Vietnamese nationalists had any idea what people were writing in the BEFEO until much later (1940s/1950s). Again, I think the topic of where these ideas about premodern Vietnamese women came from deserves a book-length study. These comments by French officials are one piece of the puzzle, for sure, but I suspect that there must be a lot of other pieces.
The Maitre quote:
“Enfin le livre de M. B. révèle à toutes ses pages la tendance à traiter le Code annamite avec le même respect que nous traitons les Codes français, c’est-à- dire à le considérer comme exprimant sous une forme adéquate les conceptions annamites en matière de droit. Or rien n’est plus contestable. Le Code en vigueur porte trop la marque de la précipitation avec laquelle il a été compilé et promulgué pour mériter tant d’estime. Après qu’il eut reconquis la Cochin- chine sur les Tây-son, étendu sa domination sur l’Indochine annamite tout entière et définitivement substitué son autorité à celle des derniers Le, Gia-long voulut marquer l’avènement de la dynastie nouvelle par la promulgation d’un Code nouveau. Les fonctionnaires qu’il chargea de la besogne répondirent à sa hâte en reproduisant servilement les articles du Code chinois de la dynastie mandchoue. Ils ne prirent même pas la peine de comparer ces dispositions avec celles qui étaient en vigueur en Annam sous les Le : il n’y a pas un seul article de leur Code qui reproduise une loi annamite antérieure ne figurant pas également dans le Code chinois. . . Aussi beaucoup de prescriptions de ce Code importé sont-elles, dès l’origine, restées lettre morte } d’autres sont tombées peu à peu en désuétude ; d’autres enfin ont été rectifiées ou remplacées par des ordonnances tífctérieures. Je ne citerai qu’un exemple, le plus frappant, de ce désaccord de la législation nouvelle avec les mœurs. Le seul point par où les Annamites aient montré une incontestable supériorité sur les autres peuples de l’Extrême-Orient, c’est le rang qu’ils ont donné à la femme, rang qui en fait presque l’égale de l’homme ; la législation des Le affirmait cette égalité, l’entourait de toutes les garanties. Or, dans le Code de Gia-long, il n’est plus question des droits de la femme. Les juges indigènes, qui connaissent la coutume, rendent souvent leurs jugements en équité, et sans trop se laisser arrêter par les prescriptions du Code ; des juges français, habitués par leur éducation au respect de la lettre de la loi, ne sauraient procéder de même et risqueraient de les appliquer avec un excès de rigueur. Une révision du Code ne serait donc nullement une mesure inconsidérée ; et il ne serait pas impos* sible qu’on s’aperçût plus d’une fois au cours de cette révision qu’en revenant aux doctrines juridiques anciennes de l’Annam, on se rapproche en même temps des nôtres. Cl. E. Maître ”