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Stimulating the Modernization of China's Section 2. History and archaeology https://doi.org/10.29013/EJHSS-20-2-26-35 YiFei Zhang, Student, The Affiliated High School of Peking University E-mail: [email protected] STIMULATING THE MODERNIZATION OF CHINA’S LEGISLATIONS: AN ESSAY ON A LEGACY OF EUROPEAN COLONIALISM Abstract. Although it is generally said that the history of European colonialism in China is a his- tory of shame and tears that the country would rather forget, I would argue that colonialism did not serve only as a detriment to China. Through various channels, such as the importation of opium and the wars fought between China and colonizers, European colonialism triggered great changes in China’s governance and the tra- ditional Chinese Legal System. The changes resulted in a progressive modification of legislations, improving existing defects in the original legal system, guiding legislations into systematization, and gradually helping them to adapt into the modern society. Therefore, I would argue that European colonialism stimulated the modernization of China’s legislations. Such a semi-autonomous, unique process of modernization has left many enduring influences on China’s society even until today. Keywords: legal History; Chinese Legal System; Qing Dynasty; European Colonialism; Mod- ernization; Legal Reform. Introduction ism and the effect it produced, ultimately conclud- Long after the collapse of the ancient Qing ing that colonialism stimulated the modernization empire, historians, especially Chinese historians, of China’s legislation. considered the period of European colonialism in Premise China as a history of violence, shame, and tears that According to the Marxism legal theory, law is not the country would rather forget. However, as history an eternal, transhistorical existence [16], rather, in light continues to progress and the scope of research ex- of the historical materialism interpretation of history, pands, we are presently able to look at the interaction law is innately similar to all other sociological phenom- between Europe and East Asia from a more objec- ena in that it experiences an objective historical process tive viewpoint. European historians, for example the and is intimately connected with the human society avant-garde California School [17], are starting to [16]. It can reasonably be concluded that law can be in- reconsider the relative status of Asia during colonial fluenced by human society and the historical events it periods [24]. Simultaneously, Chinese scholars are produces, thus providing the theoretical establishment accepting that European colonialism meant more to behind the thesis that European colonialism affected the country than just a detriment. the evolution of China’s legislation. Understood in context of the various changes in Clarification of Definitions social climate during the Qing dynasty, this article “Legal system” is a fundamental concept in legal briefly analyzes the influence of European colonial- studies. A “legal system” is defined as “a procedure 26 STIMULATING THE MODERNIZATION OF CHINA’S LEGISLATIONS: AN ESSAY ON A LEGACY OF EUROPEAN COLONIALISM or process for interpreting and enforcing the law” tion as well. Written documents, such as Documents that “elaborates the rights and responsibilities in a of the Opium Wars, also supported this conclusion variety of ways” [1]. In addition, a legal system must [21]. The spread of opium addiction into the up- possess the quality of having a unique and complete per class, especially amongst government officials, maternal legal system and a certain number of sub- pinpointed opium importation as a serious threat to systems which are influenced by, and have the same the regular functioning of the society. “Candid” offi- characteristics of, that system [32]. cers who dared to bring the problem to the Emperor The term “Chinese Legal System” used here re- [27, 3257], particularly Lin Zexu and Huang Juezi, fers to a specific genealogy of legal systems. It is a proposed to deal with the problem from a legal as- legal system that evolved on the basis of Chinese pect and urged the enforcement of a series of opium feudal ideologies [31]. The Chinese legal system is bans [21, 254–247]. However, more crucial than of global significance in that it exerted a profound bans was the exposure of the inefficiency inherent influence on the judicial structures of Southeast Asia in the traditional legislation during the process of at- through the medium of the Chinese Tributary Sys- tempting to restrict opium importation by law. That tem in early periods [32]. However, though there are is to say, their ardent proposals increased the amount many components in the legal system, this paper will of attention the government gave to the problem of focus on the discussion of legislation. mass importation of opium and ultimately forced The Interaction between European Colonial- the legal reforms necessary to restrict the further ism and China’s Legislation encroachment of opium. Though European colonialism did not act di- Recorded in Documents of the Opium Wars, rectly upon Chinese legislation, several events that Huang Juezi wrote a letter to the Emperor with spe- occurred produced significant impact on the latter. cific legal implementations to ban opium importa- One such event is the importation of opium. tion by decreasing pubic consumption: As opium permeated into the upper class of the “(Note that since some of the primary sources Qing dynasty, legal action had to be taken to prevent I used are historical documents written in ancient further spread of opium-addiction. One historical Chinese and do not have English translated versions, proof that opium had indeed become an entertain- therefore I provided my own translations and marked ment among Qing government officials is a sketch these original translations with square brackets) (Al- of a 19th century opium den. The Chinese Opium though China’s opium come from colonizers (such Smokers by Thomas Allom portrays a well-orna- as England Although the correct name might have mented opium den with 12 Chinese opium-smokers been Great Britain, but since the Chinese document crowded into it [2]. Most of the people in the front directly used the word “England”, I shall adhere to the of the picture are likely peasants, judging by their original document), the colonizers themselves have clothing [30], however, magnifying the picture re- laws that would sentence those who smoke opium veals a hat on the floor, and in the very back of the to death, preventing any opium market in Europe… picture is a man wearing the same type of hat [2]. Hence, after giving one year as a buffer period, China Matching the hats with records of the Qing dress should replicate the colonizer’s legislative methods etiquette [13], it can be inferred that the hats ap- as well. A year later, anyone caught smoking opium pearing in the picture are a kind of winter hat spe- shall be sentenced to death…)” [21, 254–257]. cifically made for Qing government officials [35]. After consideration of the 28 government of- Thus, the evidence demonstrates that people of ficials’ proposals, the Emperor Daoguang adopted high social status became victims of opium addic- Huang Juezi’s idea and announced a legislation 27 Section 2. History and archaeology providing for death sentences to those found smok- would soon be repeated in other historical events, ing opium after a 1.5-year national buffer period such as the Sino-Japanese War. [21, 388]. However, under Qing dynasty legisla- As a consequence of the Opium War, the treaties tion, requests for permission for judicial offices to signed between China and the Western powers gave give death sentences had to go through the county the colonizers rights of jurisdiction. For example, the administration, the region administration, and the Supplementary Treaty of Humen between China and province administration. Permission had to be ap- Great Britain gave Great Britain the right to try British proved by all concerning government parties, in- traders who were arrested in China [26, 34–50]. Like- cluding the Emperor himself, which could take up wise, in signing the Treaty of Wangxia between China to months to complete [25, 9–15]. The cumbersome and the United States, Americans gained consular ju- process meant that every prosecution the govern- risdiction rights and the ability to apply their legisla- ment made required a large amount of time and ef- tions for cases involving the arrest, interrogation, and fort from the prosecutor. In addition, according to punishment of Americans [26, 51–57]. The ceding Qing government instructional regulations, failure of the island of Hongkong to British rule through the of government officials to complete their assigned Treaty of Nanking between China and England intro- tasks would result in penalties [15, 87]. In this case, duced the British system of law into Hongkong: district magistrates would face legal punishments if “…His Majesty the Emperor of China cedes to they could not effectively eliminate opium smokers Her Majesty the Queen of Great Britain, etc., the Is- in their district, which would often be the case if the land of Hongkong…to be governed by such Laws specific legislation was to be implemented. Hence, and Regulations as Her Majesty the Queen of Great it was impractical to use death sentences as a means Britain etc., shall see fit to direct” [26, 33]. to repress mass opium importation. Due to such ceding, Hongkong adopted the Concern for the lack of efficiency of this system Common Law system used in its “mother country” was expressed in letters written to the Emperor Dao- and introduced legislation of the Common Law sys- guang by his Military Confidential Administration tem into the feudal Chinese ruling system. After the officers [21, 388]. The realization of the inconve- Opium War reduced China to a semi-feudal, semi- nience in legislated legal procedures gave way to the colonial country, various other countries, such as germination of conflicts between the absolute need France, Russia, Portugal, and Japan followed Great for opium restrictions and traditional legislation.
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