Limitations of Shen Jiaben's Legal Thought and Its Impact on Later Chinese Generations

Shen Jiaben from the need to revise the law, pay more attention to the study of jurisprudence. He said: "the revision of the law can not be without scrutiny, can not be unknown. And if you want the law to be scrutinized and the law to be clear, you must not fail to exhaust its reasoning." From the comparison of Chinese and foreign jurisprudence, he found that "most of the Chinese sayings are mostly out of experience, and most of the Western studies are based on theories", emphasized that experience and theories should be given equal weight and combined with each other, and thus made a clear answer to a series of basic questions related to jurisprudence: ① the concept of the law, the role and the relationship between the law and politics. He said that law is "the program of the world, the instrument of all things", which appeared in the situation of "the decline of the school, the world is overrun, the trickery and deceit, the habit of doing everything is gradually collapsing". The role of the law, a rule of the people, a rule of the country, the so-called "for the way of government, the first in the legislation in order to standardize the people", "the world can not be a country and can be long". He believed that the law is "the auxiliary of the government", "the law is clear and the punishment in the political relationship is very big". Therefore, he took the West, the formulation of new laws, first of all, "the political gains and losses". ② law must be unified. Shen Jiaben that, first of all, the purpose of legislation must be unified, that is, adhere to the law for the "national punishment", rather than "private vengeance", if the penalty to vent their anger, so that the legislative purpose of the two sides, there will be a law of the abusive abuse of the law; second, the law must be unified to break the law of the crime, if the old and the new are different, it will inevitably be "deep into its political losses". Secondly, the law must be unified to determine the crime, if the old and the new difference, is bound to make the law lose its credibility; Finally, the application of the law must be unified, not because of the different identity of the offender and differentiation, "the law of the and less than, but the division of good and evil only, the division of the Shishi Pi common people". Law is a supplement to moral education. Shen Jiaben inherited the "morality and punishment", "clear punishment and education" of the traditional legal thinking, and combined with the trend of world development, the law is only "insufficient to support the teaching" of a necessary means Even in the flourishing times of the Three Dynasties, it was not possible to "abolish punishment without using it". As one of the root causes of crime is "apologizing for education", he opposed to the use of harsh laws to bind the hands and feet of the people, put forward "the way to rule the country to benevolent government first", "punishment and education for each other to eliminate and grow "Especially for juvenile offenders, "education should be used to cultivate their virtues and to transform their vices, so that they can become good people". ④ Usage is in the people. Shen Jiaben that good legislation is important, but the law is especially important to follow the law. He repeatedly articulated "the law is valuable to get people", "usage in people" reasoning, said: "the law of the good, but still in the use of the people, if not the people, just futile law"; "For the most part, if the person who uses the law has the right person, the law, even if it is harsh, can also be benevolent in the law; if the person who uses the law has not the right person, the law, even if it is lenient, can also be tyrannical outside of the law". He suggested the establishment of a doctor of law to teach law in accordance with the ancient system, so that the central and local officials of the state could know the law. At the same time, he actively prepared for the establishment of a law school to train talents for the implementation of the new law. Since he emphasized that the use of the law was in the hands of the people, he advocated the use of severe penalties to punish those judicial officials who were greedy for profit, who made arbitrary decisions, who bent the law, and who violated the law.

The revision of the law should be "with reference to the past and present, and the broad view of the Chinese and foreign" Shen Jiaben's legal thinking, not only for the discussion of jurisprudence, but also in the practice of revision of the law. He comprehensively clarified the basis for revision of the law, pointed out that: the law should be accompanied by the different situations in the past and present, and for the benefit of, can not simply copy. In particular, he put China within the scope of the world, for examination, to illustrate the sea ban after the opening of China, it is difficult to stick to the ancestral law and unchanged. Otherwise, "with a China and the world of countries against", the advantages and disadvantages of the situation, self-evident. In order to carry out the "pragmatic period of Chinese and foreign pass" approach to the revision of the law, he "reference to the ancient and modern, Boji Chinese and foreign", that the laws of European and American capitalist countries, than the old feudal law of China, civilization, progress, China must "take the strengths of the people, to make up for My short", "the good of their law, when to take, when to take and not take, is the fool".

Shen Jiaben introduced the Western law, opposed to the complete abandonment of traditional Chinese law, he said: China's "rituals and customs are not the same as Europe and the United States ...... if the sudden law is the same with them," will increase the resistance to repair the law, "and how can we meet and complement our shortcomings". "And can be able to meet and be able to implement in the world". In order to achieve the "will be able to pass the Chinese and foreign" revision of the law, he actively organize forces, the translation of the laws of capitalist countries, as a blueprint for the revision of the law. At the same time, he requested the establishment of a law school to train specialized judicial personnel, and hired foreign jurists as legal advisers and sent them to study in foreign countries.

Democratic Legal Thought Shen Jiaben that "among the various laws, especially the criminal law is the most important", and should formulate a new criminal law as the starting point for the entire revision of the law. In view of the Chinese and foreign criminal justice system "in the heavy and light in the West is more", so the criminal law "should be changed from heavy to light" as the first step. To this end, the abolition of lynching, lording it over the head, kill the body, edge sitting, stabbing and other torture; the death penalty is generally hanged, only rebellion, treason and murder of grandparents, parents and other serious crimes, only with the decapitation; will be killed, accidentally killed, killed without authorization three virtual death penalty into exile, in order to emphasize the name of the real and the actual.

Shen Jiaben in the "equality before the law" of the bourgeois legal system under the influence of thought, put forward the flag of the Han people of all ethnic groups to commit the sending of the military to migrate to the crime, should be one and the same section, should not be stipulated in the law, "heavy and light suspension" of unequal rights. He said: "the law is not one, then the people's will doubt ...... law one, then the people's will since the Jing". Only by removing the boundaries between the Manchus and the Han Chinese, can we establish a "fair and just law" order. In connection with this, he advocated equality between men and women, opposed to the feudalism of the husband for the wife, put forward the husband and wife violation of the crime of punishment, should also be fair. Shen Jiaben also under the influence of bourgeois human rights ideas, the "permanent ban" on the Qing law permits the sale of human beings and the keeping of slaves and maids. Condemnation of the public sale of population "is not the right to value human life". Slaves and maids "are also human beings, and should not be arbitrarily mutilated. Life should be valued, personality should be respected, can not be still because of the old habits, such as human beings in the livestock also". He thought that if not removed, obviously contrary to the purpose of the promulgation of the Constitution. Shen Jiaben of these legal ideas, shining with the glory of democratism.

Shen Jiaben appreciated the Western Jin Dynasty Liu Song according to the law of the idea of crime, against the harsh demands outside the law. He requested the abolition of the Qing dynasty has long been practiced than the annexed case, exposing than the annexed case makes the people have nothing to do, only to facilitate the officials wantonly in and out of people's crimes. He presided over the formulation of the Criminal and Civil Procedure Law, confirming the principle and content of the bourgeois law of criminal justice. In the judicial system, Shen Jiaben modeled on the bourgeois separation of powers, advocating judicial independence, as "the foundation of constitutionalism". In order to ensure the independence of the judiciary, he examined the history of the past and the present, the differences and similarities between China and foreign countries, and formulated the Law on the Establishment of Courts, which clearly stipulated that the Chief Executive and the Public Prosecutor shall not interfere with the trial activities of judges.

Controversy with the old guard Shen Jiaben's legal ideas, some of which were bourgeois-democratic in nature, were denigrated and criticized by the old guard. He followed the latest doctrine of reforming China's feudal-era legislative system, which was based on a combination of various laws, and began to codify an independent procedural law at the same time as he formulated a new criminal law. He said: "Roughly criminal law as the body, the procedural law for the use of the body is not complete, in order to mark the purpose of the legislation; use is not ready, in order to collect the actual performance of the law. The two are mutually reinforcing, and cannot be deviated from." Under his presidency, the Criminal and Civil Procedure Law was compiled in 1906, which provided for "the law of crime and punishment", "open trial", "jury system" and "lawyer system". "In 1907, Zhang Zhidong attacked Shen Jiaben's draft of the new Criminal Laws for disdaining propriety and religion, and in 1909, the Draft Revision of the Criminal Laws with five articles of the Provisional Statutes was again opposed by Laonaixuan, the ambassador of the Imperial College and the Counselor of the Constitution Compilation and Investigation Hall, who blamed the new Criminal Laws for Against the basic principles of etiquette of kinship, respect, elders, men and women are different. Shen Jiaben wrote an article to refute this, forming a heated debate between the school of etiquette and the school of law, until the outbreak of the Xinhai Revolution to declare the end. In the debate, although Shen Jiaben won sympathy, but he often use the new law to fight for imperialism to give up consular jurisdiction as the reason, trying to use this to convince the old school, showing his weakness; and in the old school in front of the pressure, step by step concessions, agreed to harm the monarch as well as internal strife, foreign crimes and heavier penalties; for adultery without a husband to be sentenced to imprisonment; respect for the relatives of the offender shall not be used in self-defense, and so on. This is actually the traditional provisions of the feudal law to maintain the moral order, deny the new criminal law in the bourgeois criminal law principles. Therefore, the draft of the new criminal law reflects the conflict between the capitalist legal thought and the feudal legal thought, but also shows a certain degree of compromise between the two. This is the specific characterization of Shen Jiaben's legal thought. In his thought and speech, often the progressive tendency and conservative elements at the same time, conflicting with each other. Although he introduced capitalist legal thought and principles, for the change of the inherent feudal legal system to make a contribution, but his breakthrough to the old feudal law in the rites and customs is limited, for the reform of the feudal system of law is also not thorough.

Shen Jiaben's former residence in Xuanwu District on the diagonal street jinjing hutong 1. Xuanwu district for the key protection of cultural relics. The former residence is a three into a four-storey courtyard, the first floor of the door for a two-storey building. Shen Jiaben in 1900 to Beijing until his death in 1913 has been living here, many of his writings are completed here. In the courtyard of the front row of small buildings is Shen Jiaben in 1905 to raise funds to build, titled "pillow Bishou" building had a collection of books more than 50,000 volumes. Pillow Bilou occasional deposit draft "Pillow Bilou series of books" are thus named, his book manuscript "Mr. Shen sends the last book" for the modern study of China's ancient law of the must-read literature. There is a parlor under "Pillow Bilou".