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Shen Jiaben: on the changes of domain of the Shen Jiaben and the late Qing Dynasty judicial field (1901-1911)

Author: ZhengDing,YangAng From: www.yourpaper.net Posted: 2010-06-24 12:03:11 Read:
19, twentieth Century at the turn of the dozens of years is generally considered the key period of the development of China's legal system and the turning point in the thousands of years of.In the thousands of years did not encounter the great changes of the times, selected Shen Jiaben as the revised law minister, the achievements of the great achievements of the amendments to the law reform.Shen Jiaben has also become one of the most important characters in the process of modernization of Chinese legal system.The study on Shen Jiaben has become a hot spot in the study of legal history.For decades, Shen Jiaben has been present a splendid sight, achieved considerable results, especially in the study of historical aspects of the biggest harvest.About his various materials, documents have been found, finishing, publishing, a biography of Shen Jiaben, the chronicle of such have been published.
Lay a solid foundation in the historical important information for further research on the legal thought, academic and legal practice of Shen Jiaben.However, some of the traditional textbook legal thought research paradigm (paradigm) effects, are often limited to pick out a word or two of his works to be played, not pay attention to his origin of their academic thinking, do not pay attention to the social and political background, finally, often out of Shen Jiaben in the times, described Shen Jiaben as a lonely hero and judicial law genius, seem God-ordained to Shen Jiaben, he a person independent (up to add the last Wu Tingfang) bear a great historical mission of the judicial reform in the late Qing dynasty.Obviously, the legal reform in late Qing Dynasty and the historical truth far, also do not accord with the true face of Shen Jiaben.This paper attempts to introduce the French sociologist Pierre ? Bourdieu (Bourdieu) theory and the practice of field, capital, habitus concept, the research perspective from Shen Jiaben himself to his exposure to one of the social world (Social World), mainly in the judicial field in the late Qing dynasty.Through the study of the judicial field role of Shen Jiaben and Shen Jiaben in the judicial field changes, the meaning and value of academic legal activities and legal thought, trying to reveal Shen Jiaben.(Note: in the study period of choice, the author chose 1901-1911 this 11 years, Shen Jiaben was promoted to vice minister from the Xin Hai Revolution activities of the amendments to the law until the end.Although the Qing Dynasty judicial field changes should take the law revision 10 as the boundary, but because Shen Jiaben as the Xing Department Hall, the event itself means he has effect on the judicial field changes in the most important power of capital, so the research time limit set for 1901.)
One, "big event" and the reform of legal system of symbols: academic history and methodology
One of the characteristics of the Chinese traditional legal history is the narrative (grandnarrative) are, in large scale, the momentum of the historical events tend to be stressed again and again, and to give particular importance.The law revision of this important legal activities can become big events of concern in the process of modernization of Chinese law "" (grandevent).The events of the protagonist -- Shen Jiaben, is the priority among priorities related research.In the existing about Shen Jiaben or the legal reform of late Qing Dynasty study, take the matter on its merits or "person" is very common, it will inevitably lead to many events were isolated by the conceptual, character.In a large number of papers, Shen Jiaben gradually is imagined as a legal system modernization symbol (symbol), praises the crime, ended in a body.On one hand, it seems the late Qing legal reform and success can be attributed to this person; on the other hand, it seems that Shen Jiaben's life is born for legal reform in the late Qing Dynasty, and life is full of the final preparation stage hosted 10 years of legal change.(Note: this academic tendency, Mr. Li Guilian had a notice: "this law so to commemorate Shen Jiaben, legal education, so can not tell Shen Jiaben, legal researchers to study Shen Jiaben, press so offer the author wrote the biography, to sum up, all in Shen Jiaben presided over the 10 years of law reform (key number added to the author)".Li Guilian: "Shen Jiaben biography", Law Press, 2001 edition, P. 130th.)When the theory will be Shen Jiaben and as a "big event" in the late Qing Dynasty legal system reform binding together of the time, had already been doomed to be trapped in the mire of teleology.(Note: Li Meng points out that the logic relation: the so-called "big event" confirmation, itself is a kind of artificial construction event class historical teleology to support.See Li Meng: "towards the event a social relationship / school", set "foreign sociology" in 1997 first.)The following review by Shen Jiaben on the academic history, (Note: the purpose of this paper is not in the review, it focuses on the following quote academic method research of Shen Jiaben has important effects on the paper.As for the studies of Shen Jiaben's article, can refer to a climax, Liu Bin before the early nineteen ninties: "Retrospect and prospect" of Shen Jiaben, Zhang Guohua editor: "very learned jurist", Law Press, 1991 edition; since the late nineteen ninties, the retrieval of Chinese academic journals.)Reflection gradually unfolded a methodology.
Because Shen Jiaben plays an important role in the history of jurisprudence and legal education history, from 1913 Shen died, their colleagues, subordinates, disciples have been reviewed and his study of text to appear, but belongs to memorize the text.The official starting from the academic perspective, demonstrates the status of Shen in the legal history of the conclusion, about the first made by Yang Honglie, Yang Honglie praised Shen Jiaben as "media and western two big legal system become an Iceman families."(Note: in various historical records, Yang Honglie before the theory basically and Shen have administrative, academic relationships, while Yang Department of Tsinghua University was born, with Liang Qichao, and Shen Jiaben have no direct relation, this theory should be visible was approved on the.Yang Honglie: "Chinese history of law development", the commercial press 1930 edition, page 1078th) since then scholars hold not out of this range.After 1949, with the end of the old law, together with the academic research more or less politicized tendency, political loyalty to the rule of the Qing Dynasty, classics of Shen Jiaben academic is also regarded as "feudal bureaucrat" and pedants was law forget the years, until twentieth Century 70 years the end will be revived.
Nineteen seventies end, Zhang Guohua, Zhang Jinfan and other scholars began to pay attention to the importance of Shen Jiaben, to begin the study of Shen Jiaben, from the early 80's, there were articles and books published.According to statistics, the whole 80 years altogether published 3 monographs, 24 papers, Proceedings of the 1 Department, schools, publishing the works of Shen Jiaben "history of criminal law" and "send Yi reference library".(Note: the climax, Liu Bin Shen Jiaben: "Retrospect and Prospect of research on", Zhang Guohua editor: "very learned jurist", Law Press, 1991 edition.)These books and papers can be divided into two categories, one is for Shen Jiaben's life and the textual, another kind is the study of the academic Shen Jiaben law and legal thought, the.This paper is concerned with the latter.
The early 80's continuous several research papers published Shen Jiaben: there are "legal reformer in modern China on Chinese and Western -- Shen Jiaben" (Zhang Guohua, 1980), "on Shen Jiaben's legal thought" (Zhang Jinfan, 1980).This paper mainly adopted the method of historical materialism conception of history and class analysis.Professor Zhang Guohua believes that Shen Jiaben is the legal reformer representative of bourgeois ideology, and highlighted Shen Jiaben's contribution to the legal academic.Professor Zhang Jinfan Shen Jiaben will be defined as "to accept the bourgeois ideology of the Qing government bureaucrats," thought Shen Jiaben was an "attempt to reform the feudal law of the bourgeois reformers".Later professor Li Guangcan published a monograph on Shen Jiaben's works "on < send Yi's" [1] >.In this book, Li Guangcan Shen Jiaben's important works "send Yi" carried out a careful textual research, and Shen Jiaben will be defined as "modern bourgeois progress of China legal thoughts enlightenment and precursor."Through the study of these a few scholars, Shen Jiaben to be recognized by law circle, and gradually become the focus of legal research.The above a few scholars are in 1949 after the first generation of legal historian, is in fact the Marx historiography paradigm to introduce the history of the first batch of scholars.Since the later of legal history scholars for the majority of these scholars disciple, so Shen Jiaben study what they do in the early 80's to the later scholars has paradigmatic significance.After 1980, more works of Shen Jiaben research have been developed, but the research methods generally not the scholars create paradigm.With the historical materials, finishing, everfount that publishing, later scholars to study the Shen Jiaben continuous refinement, more in-depth, in 1990 to commemorate the 150 anniversary of the birth of Shen Jiaben Shen Jiaben academic research will study up to a peak.
In the late nineteen eighties until the 90's, modern research has become the focus of the humanities and social science, this upsurge in the embodiment of academic research is the modernization of law becomes the focus of.The modernization of law is a complicated process, the research is hard to start, in the historical purpose
On impact, the legal reform of the many scholars eyes the most representative of the "big event", was chosen to be the research object.The status and role of Shen Jiaben in the legal system reform in the late Qing Dynasty outstanding, naturally become the focus of research in this field.Thereafter, an important trend of Shen Jiaben research is the position of Shen Jiaben in the legal system reform in late Qing Dynasty and the contribution has been repeatedly reaffirmed, although probably not the evaluation of several scholars on the scope, but its importance after repeatedly stressed, was raised to a hitherto unknown height.Through imagination, abstraction, refinement and sublimation, in the view of today's general law students and younger generation of scholars, Shen Jiaben has become a symbol of legal reform in the late Qing Dynasty was the or pronoun, referred to the late Qing legal reform, must think of Shen Jiaben, and vice versa.(Note: I have been in the Renmin University of China School of law, 2002 law of PhD students in the history of the late Qing Dynasty legal change cognitive problems of participants in the sampling survey, respondents for 36 people.When asked about the "process of establishing what you know of the late Qing Dynasty legal reform and modern legal system plays an important role in the important person who?" when referred to Shen Jiaben, who has 36 people, accounting for 100% of the total number of survey; mention Tingfang were 29, 80%; mention Yang degree is 7 people Zhang Zhidong; mentioned for 5 people; mention Liang Qichao for 3 people; mention Dong Kang for 2 people; Xue Yunsheng mention 1 people; mention Yikuang 1 people; mention Yuan Shikai 1 people, accounted for a percentage of the number is below 19% (the above mentioned some of the characters and legal reform there is no direct relationship between respondents, Department of cognitive errors).Thus, Shen Jiaben (and Wu Tingfang to some extent) has become synonymous with the general law students in the eyes of "legal system in the late Qing reform".)This does not seem to grasp and understand the process of legal reform in the late Qing Dynasty, also deviated from the correct understanding of Shen Jiaben himself.
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