Study On Shen Jiaben’s Thought Of Human Rights

Shen Jiaben’s thought of human rights occupies a very importanthistorical position in development history of the modern human rightsthought of China, and has an important impact on the development offuture generations of human rights and legal institutions in China. Theformation and development of Jiaben’s thought of human rights not only isthe inevitable result of the change of modern national human rightsconsciousness and legal sense but also has a profound impact on the furtherenhancement of modern national human rights consciousness and thechange of legal sense from traditional to modern. From on the modern times of China, driven by the wave of WesternLearning, the human rights thought of modern western has been stronglyintroduced and promoted by the early Chinese bourgeois reformists, thebourgeois reformists of WuXu Reform Movement and so on, and is spreadamong the modern intellectuals of China to a certain extent. This providesthe necessary theoretical sources for the formation and development ofmodern human rights thought of China. By the social and historicalconditions gradually maturing for the formation and development ofmodern human rights thought of China, Shen Jiaben’s thought of humanrights is ultimately promoted to form and develop in the “New Deal” of thelate Qing Dynasty. Therefore, in a sense, the formation and development ofShen Jiaben’s thought of human rights is resulted by a variety of factors tojointly promote at home and abroad. Specifically, the humanitarian idea ofpolitical and legal thought of traditional China, the Modern WesternHumanism and the civil rights thought of bourgeois reformists of WuXuReform Movement are three main theoretical sources for Shen Jiaben’s thought of human rights to form and develop; The times theme of salvationand reform, the national human rights consciousness gradually enhancedsince the modern China and the crisis of political legitimacy and itspolitical reform of the late Qing Dynasty are three major social andhistorical conditions for Shen Jiaben’s thought of human rights to form anddevelop; The infancy period, the formation period and the developmentperiod are three progressive history stages for Shen Jiaben’s thought ofhuman rights to form and develop, and it is born by accompanied with thehistorical process of the amendment of laws in late Qing Dynasty.In the process of his presiding over the amendment of laws in lateQing Dynasty, Shen Jiaben write a large number of legal writings and somememorials and revises related with activities of the amendment of laws inlate Qing Dynasty, digesting the Chinese and Western jurisprudence spirit,on the basis of drawing on all positive results that all times and allcountries had, and eventually formed his abundant human rights thoughtwith own characteristics. The carrier for Shen Jiaben’s thought of human rights is his legal thought with modernization significance. His specificlegal thought including criminal law, civil law, and procedural law and soon is permeated with his rich human rights thought. The basic connotationof Shen Jiaben’s thought of human rights includes: Three aspects equalitythought, that is gender equality, ethnic (racial) equality, national equality;Free thought, that is personal freedom and social life freedom; Penaltyhumanitarian thought, that is deleting torture, changing heavy to light andhumanitarian protection to criminals. Shen Jiaben’s legal thought reflectsthe equality thought, freedom thought and penalty humanitarian thought,which together constitutes a rich connotation of his human rights thought.The three not only embody the common character of mutual infiltration andconnection, but also reflect the individual character of mutualindependence and distinction. The common character of mutual infiltrationand connection of three parties reflects the overall characteristics of ShenJiaben’s thought of human rights, and the individual character of mutualindependence and distinction of three parties reflects the specific characteristics of the various aspects of Shen Jiaben’s thought of humanrights.There are three major theoretical foundations for Shen Jiaben’sthought of human rights, that is the political viewpoint with “benevolentgovernment” as its core, the viewpoint on “qing and li” with digesting theChinese and Western jurisprudence spirit and the legal viewpoint with “thedoctrine of respecting the personality” as its core. They are mutualinfluence, interaction and complementarity, and are united in the process ofShen Jiaben’s thought of human rights to form, develop and practice. In theprocess of the amendment of laws, Shen Jiaben has his own understandingand awareness on “benevolent government”,“qing and li” and“personality”, and gives specific connotation to them. Shen jiaben’s uniqueunderstanding and awareness on their connotations has provided a certaindegree of theoretical foundation for his human rights thought to form anddevelop. Because Shen Jiaben concretely practices their connotations in hispresiding over the amendment of laws in the late Qing Dynasty, so that his rich human rights thought is formed.Shen Jiaben in full penetrates and implements his human rightsthought in the amendment of laws of the late Qing Dynasty, and makes hishuman rights thought to be embodied in the entire process of theamendment of laws and its related the achievements. The mainperformance is that his human rights thought has a certain degree ofpractice in the legislative aspect and the judicial aspect in the amendmentof laws, and has a certain degree of manifestation in the newly revised andformulated legal institutions. By making some substantive laws with NewCriminal Law Draft of Qing Dynasty as their a representative, Shen Jiabenpenetrates progressive legal thoughts and legal principles of the modernwestern, which comprehensively embodied three basic principles of themodern western criminal law, namely the Doctrine of Legal Crime andPenalty, the Doctrine of suitable Punishment to the Crime and the Doctrineof humanitarian criminal punishment. This marks the Chinese traditionallaw beginning to trend modern transformation and more clearly shows the legal protection to criminals’ fundamental rights from the legal institutions,which makes his human rights thought to practice in the legislation to acertain degree. By reforming the traditional justice system of China, ShenJiaben introduces or draws on fundamental principles of justice of themodern western, including the independence of judiciary, the presumptionof innocence, the equality before law and the due process of law and so on,and preliminarily achieves the modernization of the judicial system, whichmakes the prototype of basic framework has shown for national judicialmechanism to protect human rights and also makes his human rightsthought practice in the judicial system and judicial practice to a certaindegree. In practice, however, this doesn’t produce significant result toprotect fundamental human rights, after all this has taken the firstgroundbreaking step to protect fundamental human rights in the legalinstitutions.The historical position of Shen Jiaben’s thought of human rights cannot be replaced by others in the evolutionary history of the modern human rights thought of China. From the progressive nature of times, ShenJiaben’s thought of human rights not only promotes to transform from thehumanitarian idea of political and legal thought of traditional China to thedoctrine of modern human rights, but also opens the door of China’s humanrights coming into the field of legal institutions. Moreover, Shen Jiaben’sthought of human rights also is the beginning for the bourgeois humanrights theory of China to initially form. From the nature of historicallimitations, Shen Jiaben’s thought of human rights obviously has the natureof historical limitations, including not to completely get rid of the yoke offeudal thought, not to completely beyond the fetter of feudal landlord classand not to completely and correctly understand the issue of human rightsby himself. But not because of the nature of historical limitations of ShenJiaben’s thought of human rights embodied, we can ignore its the positiveimpact on the later development of human rights and legal institutions ofChina. Shen Jiaben’s thought of human rights promotes not only the furtherenhancement of the modern national human rights consciousness, but also the change of modern national legal sense from traditional to modern, andeven has produced a certain degree of impact on the development of humanrights and legal institutions in current China.