Shen Jiaben's Thought of Legal Reform

The end of China's legal system and the modernization of China's legal system began with the legal reform presided over by Shen Jiaben in the late Qing Dynasty. This reform was carried out on the basis of fully sublating China's legal tradition and introducing legislation from western countries. Taking this as an opportunity, China's legal system began its transformation to modernization. Shen Jiaben also won lasting praise and admiration from later generations, and was known as "the father of legal modernization in China". Yang Honglie, a famous scholar, called him "the greatest legal expert in the Qing Dynasty", "the Chinese legal system is in his hands, and he is also an iceman who has become one of several major legal systems in the East and the West" [1].

First, the integration of China and the West, eclectic: an overview of Shen Jiaben's legal reform thought

Shen Jiaben inherited China's ancient thought of political reform, and put forward his own thought of political reform from the viewpoints of "law changes at any time" and "law changes at any time", and advocated that legal research should combine ancient and modern times and learn from Chinese and western cultures. He said: "In this era of rule of law, if we study the present instead of the past, but admire western laws instead of discussing China and France, then the law is incomplete and can be safely understood as being promoted in the world?" [2] In other words, learning is old and new. This is his attitude towards Chinese and western theories, which is against sectarianism:

"Today's rule of law theory is full of four forms, which are in the ascendant. The imperial court will set up a museum, compile legal books, change course and be more open. It is a scholar in the world, a dispute between old and new, and a portal of all kinds. What is this? The essence of my country's old learning, its own legal system, exquisiteness, forbearance, forbearance and new learning have all been included. I can't wait, so I won't learn. New knowledge often comes from old knowledge. The more incidents, the denser the jurisprudence, but it is always important.

The word external causes. No matter how old and new you learn, you can't give up your feelings and don't follow the rules, but you can achieve mastery through a comprehensive study. Conservatives often get rid of bad habits, the old ones are not abolished, and the new ones are also reference, but it is impossible to hold a door view when implementing according to one's ability. [2] Shen Jiaben also pointed out from the relationship between practice and theory that middle school "mostly comes from experience" and western learning "mostly comes from academic theory". "If you don't understand academic theory, those who have experience can't understand it and don't learn from experience, then academic theory can't be proved. Both experience and theory are needed "[2]. It is precisely because China's ancient jurisprudence and modern jurisprudence have their own strengths that legal scholars should "protect what they have and benefit what they have". [2] It is from this attitude that Shen Jiaben always adheres to the principle of "learning from the past and learning from others" [2]. He opposed forgetting his ancestors and blindly advocated western law; It also opposes the portal view and abandons all western laws. He criticized both factions: "The advocates of western law in this world may not understand the original law, but they are eager to follow it because they think it is dazzling. Those who insist on the first kind despise westerners and think that nothing is enough. " [2] In order to meet the needs of the ruling class in the late Qing Dynasty, Shen Jiaben clearly stated: "Those who are not good at my law should go. Going is the opposite of not going. People who are good at other methods should take it. It is foolish to replace it. " [ 2 ]

Second, imitating western laws: the focus of Shen Jiaben's legal reform thought.

As mentioned above, Shen Jiaben not only opposes advocating western law; We are also opposed to completely abandoning western laws. However, between learning from foreigners and following the tradition, the author thinks that Shen Shi's attitude is not equal to both. For various reasons, Shen Shi pays more attention to imitating western laws, and even takes "being a model power" as the purpose of the reform, taking western laws as the standard, and equating the reform and revision of laws with the formulation of various westernized codes.

Shen Jiaben lived at the end of 19 and experienced the plunder and humiliation brought by foreign aggression. He witnessed the situation that China was invaded and plundered by foreign powers because of backwardness, and the country was ruined and the people were in dire straits. The crisis aroused his sense of hardship and his strong pursuit of the value of strengthening the country and enriching the people, which in turn pushed him to seek the way of governing the country and securing the country. In order to relieve domestic troubles and foreign invasion and save the country from peril, Shen Shi certainly respected the western legal system and hoped that the rulers of the Qing Dynasty would follow the example of foreign countries and govern the country. However, Shen Shi pays more attention to imitating western laws, the most fundamental and direct reason is the consular jurisdiction that has long troubled the Qing government.

The so-called "consular jurisdiction of foreign countries in China" is a kind of judicial privilege stipulated by the western powers headed by Britain in the unequal treaties that China was forced to conclude. According to this privilege, nationals of countries that enjoy consular jurisdiction in China are not bound by the laws of China, and can only be judged by their consuls or their judicial institutions in China according to their own laws.

Consular jurisdiction, as an important symbol of semi-colonial and semi-feudal judicial system in modern China, seriously damaged the judicial sovereignty of China. In modern China, the system of consular jurisdiction was forcibly established by western powers in the form of unequal treaties by deliberately trampling on China's sovereignty through wars of aggression. The consular jurisdiction of foreign countries in China was formally established in the Charter of Sino-British Trade with Five Ports and its supplementary clauses published in Hong Kong on July 22nd, 843, and the subsequent Provisions on the Aftermath of Sino-British Trade with Five Ports (namely, the Humen Treaty). Article 13 of the Sino-British Five-Port Trade Charter stipulates that "when there are negotiations and lawsuits between British nationals and China people, the steward cannot persuade them to settle. If we can't make do with it, we should ask China officials and officials to find out the matter clearly, make a fair judgment when we have the truth, and avoid litigation. How the British people commit crimes is determined by the articles of association and laws agreed by Britain and sent to the steward for compliance. How China people commit crimes should be governed by the laws of China and should be handled in accordance with the original aftermath provisions in Jiangnan. " [3] This is the first treaty basis for western powers to obtain consular jurisdiction in China, and its conclusion marks the emergence of the consular jurisdiction system in China. Since then, great powers have followed, overlapping each other. The scope of application of consular jurisdiction is getting wider and wider. Foreign consuls have obtained the right to attend the hearing and the jurisdiction of mixed courts, resulting in the strange phenomenon that "outsiders are not punished by China, but China people judge foreign countries instead" [4]. This is a profound portrayal of the semi-colonization of China society after the Opium War.

Consular jurisdiction not only destroyed the supreme judicial sovereignty of the Qing government, but also made the Qing government bear an unbearable bitter fruit. Foreign-related cases have different laws and jurisdictions for China and foreign countries, resulting in people's lives and property not being properly protected. Shen Jiaben's Third Edition of Criminal Cases, with a special volume, Criminal Cases of Sino-foreign Negotiation, keenly felt this harm. What worries the Qing government even more is that the consular jurisdiction directly endangered the rule of the Qing government. Due to the existence of consular jurisdiction, the political and judicial power of the Qing dynasty could not be under the jurisdiction of the concession of various trading ports. This so-called "state within a country" provided a relatively relaxed environment for those who were dissatisfied with the Qing government, and to some extent, they had the freedom to expose their dissatisfaction with the Qing court. As a result, the port concessions outside the jurisdiction of the Qing Dynasty, especially the Shanghai concession, became places where the people, especially the bourgeoisie, advocated improvement or revolution. The reformists of Kang Youwei and Liang Qichao and the revolutionaries led by Dr. Sun Yat-sen all used concessions. The Qing dynasty was annoyed and helpless about the activities of the bourgeoisie in the concession, especially the anti-Qing activities of the revolutionaries. This mentality of the feudal rulers in the Qing Dynasty was fully revealed in the famous report of Shanghai Su 1903 [5].

Since the Qing government realized the serious harm of consular jurisdiction, the issue of consular jurisdiction has always been a heart disease for him. 1902, when the Qing government renewed its commercial contract with foreign countries, Britain, the United States, Japan and Portugal sent a charming temptation to China. These four countries claimed that they would allow China to give up its extraterritorial jurisdiction if China could amend its laws to make them the same as those of western countries. "China very much hopes to amend the law, so that.

Britain is committed to doing its best to help achieve this goal. Once China's laws and regulations, its judgment methods and all related matters are properly investigated, Britain promises to give up its extraterritorial jurisdiction. "[6] Thus, the restoration of consular jurisdiction became the most important motive of Shen Jiaben's political reform and constitutional amendment. As Shen Jiaben said: "Western countries attach great importance to legal rights, taking the territory of a country as the boundary. People from country A who live in country B are tried by country B, but they are independent of China and handed over to me in the name of ruthlessness. They urgently need to change their minds. Today, Britain, the United States, Japan and Portugal all allow China to amend its laws. First of all, it will take back its extraterritorial jurisdiction and make it a hub for reform and self-improvement. I was ordered to review laws and translate imperial edicts. Originally, I used the old seal to give an excuse to outsiders. It is better to use advantages and disadvantages to achieve the effect of long-term control. " [ 7 ]

The Qing government, a powerful country with no skills, was convinced of the temptation of the great powers, so Empress Dowager Cixi issued an imperial edict on the reform: "There are many issues about trade negotiations now, and Shen Jiaben and Wu were sent to carefully review and revise all existing laws and regulations according to the situation of trade negotiations and taking into account the laws of various countries, and put forward them appropriately so that they can be used well at home and abroad." [8] The imperial edict of Cixi's political reform limited the scope of Shen Jiaben's political reform and law revision activities with irresistible orders, and put forward China's laws "according to the situation of trade negotiations and taking into account the laws of various countries". Such a legal revision completely ignores the social situation in China and does not take the inheritance and transformation of the old laws in China as the starting point, which is tantamount to equating legal reform with the westernization of the legal system. Therefore, Shen Shi's reform and amendment in the late Qing Dynasty was not the self-reform of China's laws, nor was it based on the fundamental transformation of China's traditional society, but aimed at restoring consular jurisdiction and maintaining the rule of the Qing government. Pahlman once said on the topic of legal revolution: "The large-scale sudden change of law, that is, revolutionary change, is actually' unnatural'." [9] On the whole, the reform and amendment presided over by Shen Jiaben in the late Qing Dynasty was an "unnatural" change in the process of China's legal modernization, and the focus of Shen Jiaben's legal reform thought was undoubtedly to copy and transplant western laws.

Third, the integration of China and the West: the rationality proof of Shen Jiaben's legal reform thought.

Shen Jiaben's thought of legal reform imitating western laws must be fully demonstrated before it can be accepted by the rulers and truly implemented in specific provisions. Shen Jiaben had to face the doubts of opponents: If western laws were transplanted, wouldn't it be a denial of China's traditional laws? Shen Jiaben's attitude towards this is "to compromise the good rules of great harmony among countries and to rely on the latest theories in modern times, but it is still not violent."

It depends on the ethics and customs of our country. [10] Shen Jiaben discusses a legal reform plan, which often starts from ancient Chinese laws and goes back to three generations to prove that this change has its roots in ancient times, then outlines the legal provisions of western countries, highlights the drawbacks of today's laws, and finally proves that this legal reform is imperative. In other words, Shen Jiaben's strategy is to attach western laws to China laws, so as to communicate Chinese and western laws and introduce western laws. Shen Jiaben studied the origin of traditional law, excavated the essence of China's traditional legal theory, made it consistent with the western method in academic theory and normative form, and then turned the norms of the western method into something inherent in China. The purpose of this measure is to integrate the theoretical basis of Chinese and foreign laws and make foreign legal norms easily accepted by China citizens. Therefore, the author thinks that "blending Chinese and western" is the way and means to demonstrate "imitating western law" in order to prove the rationality of "imitating western law".

In order to eliminate the internal views of the legal profession, Shen Jiaben once cited a large number of examples to demonstrate that "there are people in western laws who are congenitally the same as ancient laws" [1 1], and "the system of Taixi was cited and proved in ancient times" [12].

Such as the theory of rule of law, he pointed out: the rule of law is not original in the West. "Guanzi" has: "It is auspicious to regulate the people's legislation and ominous to rule the country by law." There is also: "With the rule of law, it is just a trick." There is also: "The rule of the former king also made the law not choose people, not bootstrap, and made the law not work hard." These "are very similar to the theories of westerners today" [13]. Therefore, the rule of law in western theory was discussed in ancient China, but with different purposes.

It can be seen that Shen Jiaben's way of argument is the basis of seeking modernization in China tradition. So the more changes, the more in line with their own traditions. From this method of argument, we can see Shen Jiaben's efforts to remove obstacles in political reform and make his suggestions accepted by people, and realize that his reform thought of integrating ancient and modern China and the West has always been consistent.

But Shen Shi's western method is far-fetched than China's and France's, which makes sense. He once compared the western jury system to Zhou Li's "three-stab method"; According to the theory of reading dysprosium in Han dynasty, there are more indictments in Tang dynasty than in western countries. During the Tang and Song Dynasties, the division of labor between the Ministry of Punishment and Dali Temple was divided according to the western administrative and judicial powers. Shen Jiaben even thought that "the new Japanese national system was extracted from the Book of Laws and Regulations" and was regarded as Zhou Guan, Tong Dian and Hui Dian. Shen Jiaben's immaturity and even mistakes reflect his good intention to borrow the past from the present to reduce the resistance of practicing the law.

Fourthly, the game between tradition and modernity: a difficult problem that Shen Shi can't solve.

As mentioned above, Shen Jiaben's reform and amendment of laws did not take the fundamental transformation of China's traditional society as the starting point, but aimed at restoring consular jurisdiction and maintaining the rule of the Qing government. He equated the modernization of China's laws with the westernization, so he revised the new law "for the purpose of imitating foreign powers", showing the tendency of imitating the western system, but ignoring the localization development of China's laws and failing to analyze the laws from the perspective of national interests and social culture. As a result, although he made China's law have a modern shell, he interrupted the tradition of China's law in the process of transplanting foreign laws. The new law he revised is incompatible with traditional values and cannot go deep into real social life.

It can be seen that when we study Shen Jiaben's legal reform thought, it is an unavoidable question, and it is also a question that Shen Shi has been exploring: what standards should be used to transform China's traditional laws, how to transform China's laws from tradition to modernization, and how to deal with the game between tradition and modernization? Under the pressure of withdrawing consular jurisdiction, and out of understanding the advanced nature of western legal system, Shen Jiaben thinks that the standard of China's legal system modernization is western legal system. In Shen Shi's view, the modernization of law was transplanted from foreign countries, not grown in China's local society. Therefore, what Shen Jiaben can't solve is the disconnection between legal transplantation and local resources, and the disconnection between legal texts and legal practice. Although the western law has been fully transplanted, the legal practice remains the same, and some scholars believe that the new law

Without benefits, it destroyed the "inversion of etiquette and custom order" in primitive rural society [14].

However, law is a product deeply rooted in a certain social culture. It is not a completely independent system, but a part of social life. As a historical and cultural phenomenon, the occurrence, development and change of law are influenced by many social factors such as economy, politics and culture. However, reforming and amending laws, mechanically copying the western system and applying it to China, a semi-colonial and semi-feudal society, often causes the harm of putting the cart before the horse.

In the process of China's legal modernization, tradition and modernization have always been a pair of difficult problems. Although traditional culture has lost its dominant position in the legal field, it still deeply affects the legal consciousness, legal psychology and legal values of modern society. We should not only make a comparative study of foreign legal thoughts, legal systems and legal cultures, but also pay full attention to the study of China's traditional legal culture, so as to respond to the needs of transforming China's reality. Western legal system is not the only standard of modernization.