Zeitschri des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R Journal of the Max Planck Institute for European Legal History geschichte g Rechtsgeschichte Legal History www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg22 Rg 22 2014 176 – 190 Zitiervorschlag: Rechtsgeschichte – Legal History Rg 22 (2014) http://dx.doi.org/10.12946/rg22/176-190 Zhang Zhongqiu China’s Selection of Foreign Laws for Succession in the Late Qing Dynasty Dieser Beitrag steht unter einer Creative Commons cc-by-nc-nd 3.0 Abstract This article studies the selection of a target country for succession of foreign laws by China of the late Qing Dynasty as well as the channels and approaches based on documentation in the Chi- nese language. According to this article, the selec- tion was mostly limited by information, the national situation and political system, objectives, international environment, legal tradition as well as human and material resources, of which the national situation, political system and objectives serve as key factors. In this case, historically, China of the late Qing Dynasty looked at the United States, Britain, France and Germany before settling on Japan as the target country for the succession of foreign laws; and with respect to the channels and approaches for the succession, several relatively effective channels and approaches, such as studying aboard, translating foreign texts, making survey trips and hiring foreign experts, were employed. Such selection by China of the late Qing Dynasty for the purpose of succession of foreign laws provide us with useful references for thinking about law succession and the current exchange of laws and cultures between China and foreign countries. □× Rg 22 2014 Zhang Zhongqiu* China’s Selection of Foreign Laws for Succession in the Late Qing Dynasty Which law would people, relying on their own vinced of the proposal. Yan Fu translated a large experience and reason, select for succession from quantity of foreign political and legal texts simply the diversified legal world and different forms of for this purpose. 1 Until the Reform Movement of law under specific circumstances, and what ap- 1898, Kang Youwei clearly proposed in his written proaches would people take to accomplish such statement submitted to the emperor Guangxu of selection? These are problems that must be faced in the Qing Dynasty that: the succession of laws. Although the analysis of and solutions to these problems are finally man- It is an extraordinary national humiliation that ifested through actions, one can get a glimpse of foreigners govern their nationals in China on certain cultural and social characteristics in the their own without granting us the equal rights. succession of laws through the actions and pro- They claim that it is due to the harshness of cesses. These characteristics may not be apparent, Chinese penal law and differences of legal sys- but they always influenceorevendominatethe tems. I propose that now we follow the exam- selections in the succession of laws. ples of laws in Rome, Britain, the United States, Germany, France and Japan and amend our laws. The amended laws shall first be enforced I. Selection of the Target Country for the in the trading ports and then in the inlands. Succession of Foreign Laws by China of The Westerners are all very thorough and wise theLateQingDynasty with regard to civil law, commercial law, mar- ket regulations, vessel regulations, procedural Time and space are of great importance to our law, military law and public international law. understanding of problems. China of the late Qing Sincewecannolongercloseourborderand Dynasty in the 19th century had been integrated market, we will have to allow all the commerce into the world system led by the Western world, and exchange. But now there is no relevant law just as Liang Qichao said, China was no longer a and the government officials and the people country of China or of Asia, but a country of the have nothing to abide by, this will cause various world. Facing the whole world and featured for- bad consequences. Besides, the new laws men- eign laws, China of the late Qing Dynasty indeed tioned above are something that we have never had a large variety of target countries for the had before and can supplement and improve succession. However, particularly because of the our legal system under the current circumstan- wide range of countries on hand, the selection ces. Therefore, I propose that a special depart- lasted for quite a long period of time. As is well- ment be established to evaluate and adopt for- known, the gap between China and the West eign laws and amend our laws for people to manifested itself during the Opium War in 1840, abide by. 2 and the Chinese far-sighted personage started real- izing the necessity for learning from the West. So, Judging from Kang Youwei’s written statement, Wei Yuan put forth an idea of »learning from the it was definite that he petitioned the emperor foreign countries.« Lin Zexu was even more con- Guangxu to introduce foreign laws to eliminate * Zhang Zhongqiu, Dr., Professor of 1 Records of Old Dreams of the Reform: contain illuminating ideas and true Collaborative Innovation Center of the »Self-Reform« Movement of China a ambitions, which will no doubt prove Judicial Civilization, China; of Law Hundred Years before Wuxu,compiled emotive for modern readers. See Zhu at the Research Institute of Legal by Zhu Weizheng and Long Yingtai, Weizheng,Long Yingtai (comp.) History, China University of Political selects the texts on reform by wise (2000) (all subsequent citations refer Science and Law, Beijing, China, men including Gong Zizhen, Wei to this edition). Tel/Fax: 0086-10-82565892; Yuan, Lin Zexu, Liang Qichao, Yan 2Kang Youwei (1998), first volume, Email: [email protected] Fu, Kang Youwei et al. These texts 214–215. 176 China’s Selection of Foreign Laws for Succession in the Late Qing Dynasty Fokus focus the national humiliation. However, for the foreign based on »adopting laws of the East and the West.« country from which a law was going to be intro- The Qing government »issued an imperial decree duced, Kang mentioned Rome, Britain, the United as per the presented request,« and determined the States, Germany, France and Japan, and then said, guideline of »consulting laws of other countries »The Westerners are all very thorough and wise.« and making an appropriate draft to achieve adapt- This reveals that Kang Youwei could neither dis- ability to both domestic and foreign circumstances tinguish the past from the present, nor distinguish and to benefit the ruling of the Qing govern- Britain, the United States, France and Germany ment.« 4 After accepting the commission to under- from Japan, referring to an Eastern country as take the amendment of law under the imperial though it were a Western country and putting order, Shen Jiaben and Wu Tingfang submitted a emphasis on the West in terms of the target Memorial of Abolition of Severe Punishment in the country for the introduction of foreign laws. This Penal Law to the emperor Guangxu on April 24, was a normal phenomenon at that time. Although 1905 stating that: Kang Youwei’s proposal was fine in theory, which was the so-called broadening of one’s horizons and We admire very much Your Majesty’s great and choosing and following the best, it was impracti- far-sighted strategy, and we will consider and cal. Not to mention that so many target countries draft the general approaches to implement this could not be selected simultaneously, the two strategy. We propose that the government different Anglo-American legal systems and civil should select the officials who are familiar with law system were then difficult to be concurrently the Chinese and Western laws and commission introduced and integrated. 3 As a result of the them to respectively codify the laws, hire doc- failure of the Reform Movement, this proposal tors and lawyers who were versed in law from was never put into practice. Eastern and Western countries as consultants, Based on the records of the Manuscript of the and assemble graduates who have studied History of the Qing Dynasty – Treatise on Penal Law, abroad to translate the foreign laws into Chi- until 1900 when the Eight-Power Allied Forces nese. We petition that a special fund be appro- marched into Beijing, the Qing government still priated for the above-mentioned work and to intended to »introduce laws from Europe or the carve seals in witness whereof. 5 United States« in terms of introducing foreign laws. In 1902, the Zhili district governor Yuan Basedontheabove-mentionedclues,just Shikai, the Liangjiang district governor Liu Kunyi roughly counting the years, we can find that it and the Huguang district governor Zhang Zhi- took more than half a century for China of the late dong jointly advised Shen Jiaben and Wu Tingfang Qing Dynasty to select a target country for the to act as the secretaries in charge of law amending, succession of foreign laws. The trail of this process putting forward a point of view on law amending is as clear as follows: »Learning from the West« (in 3 Britain and the United States are the emperor and his mother went United States to amend the law based Anglo-American law countries with hunting to the West. The personage on the adoption of Eastern and Wes- case law systems following the prin- concerned about the country all be- tern laws. The emperor issued an im- ciple of stare decisis, while France and lieved that then China would not perial decree as per the presented Germany are civil law countries with become strong without introducing a request, ordering the amendment of statute law systems originating from law from Europe or the United States.