Shen Jiaben' Legal Thought About The Harmonization Of Chinese And Western Law

After Opium War,Chinese began to learn western knowledge for the true condition of the world was known by Chinese gradually and some traditional ideas such as "China is the center of the world "and "China is center and other countries are marginal " were impacted very strongly.And through this process,the problem is how to coordinate and deal with the relation of the civilization of China and the western,and from "learning other countries' advantaged skills to conquer them" to "learning western knowledge is to maintain traditional Chinese ideas" and to "Reform movement of 1898" and final to Shen's thought that named HUITONG in china means" the harmonization and transfixion of Chinese and western",and Chinese developed into learning western law,regulation and culture step by step from learning western skills at beginning.In the end of the Qing Dynasty,amending the law with the support of the government is a practice of learning and introducing into western legal system formally and publicly and it made the problem of the relation of the civilization between China and the western up to the height of country's political life from civil disputes.It involves three parties which have different understandings about the relation between Chinese and western law to revise the law in the end of Qing Dynasty.In terms of the result of amendment of the law,Qing government requires to enact a law which can be effective not only in China but abroad,however,the government did not give a specific advice;Under the premise of insisting the traditional major regulations will not change forever,The ethic faction which led by Zhang Zhidong put forward a specific division between "variable" and "invariable";And as actual operators to revise the law—The law faction leading by SHEN, advanced creatively a new kind of legal thinking which is "Harmonization and transfixion of Chinese and western" on the basis of requirements of those two parties and conditions in and aboard China faced up at that time in the terms of learning western law.However,it is more difficult and complex to practice the thinking in reality than putting forward macro requirement simply,and all these are conditions that Shen amended the law,so it is necessary to know what said above if we want to know his legal thinking—"Harmonization and Transfixion".Referring revising the law,we have to consider some traditional characteristics of Chinese Law such as "Ethic and law was combined","All department law was fixed in a criminal code","The same procedures and sentences regardless of criminal and civil",and usually a code which is consisted of criminal law mostly is the standard of a whole country' law.Therefore,this reality should be considered no matter what the aim is of legislation and revising the law for Qing government,and so revising criminal law became the focus very naturally in that time.SO,"The new criminal law of Qing Dynasty" became the first law to be revised in the end of Qing Dynasty.While the law became controversial when it is effective because it is beyond traditions at a great extent,and "The courtesy law battle of latter stage of Qing Dynasty" through it made the conflict between Chinese and western legal thinking terrible.This article is to study Shen JiaBen' legal thought—"The harmonization and transfixion of Chinese and western" according to the background of amending the law in the end of Qing Dynasty,and its clue is enacting the new criminal law of Qing Dynasty,and the core of this article is to dealing with the relation between China and western law while amending the law. The basic idea:we can raise the problem of the relation between Chinese and western law from "The temporary articleⅤ",and then we discuss the whole course of "The courtesy law battle of latter Qing Dynasty" deeply to know why those two parties argued and what their position and point is,following,we turn to study Shen JiaBen' personal understanding of the relation between Chinese and western law and his theory—"Harmonization and Transfixion" from the practice of amending the law.finally,we are to study the essence of his thinking by knowing the relationship between theory and practice.Therefore,we can have a reasonable interpretation about historical choice which seems "conflicting" by combining Shen's opinion and decision in some important arguments such as "the courtesy law battle" and so on.This article is divided into four parts as follows:The first part:annex of "The temporary articleⅤ" and some thinking of it.And it can lead to other parts as a beginning.Because some key controversy of amending the law in the end of Qing Dynasty and enacting "the new criminal law of Qing Dynasty" are dealt with by the appearance of "the temporary articleⅤ",and on the other hand,"the courtesy law battle" began and became more and more terrible because of annex of " the temporary articleⅤ".Accordingly,this part is very significant to the following parts and to know Shen's political and ideological conditions to legislate and then to reveal his legal thoughts.The second part:Shen Jaben and the law battle.Shen' greatest contribution in amendment to laws of Qing Dynasty is that to grasp the direction of development about new law.As the host of law revising,he need to consider not only the progressive and practically about the coming law,but also his law must be accepted by rulers and the whole society.In addition,the time that he lived in was very perplexed,both conservative and open-minded was embodied in his body,but he can avoided the divergent,do his own decision,itself need great courage.Shen's claim and efforts in each stage of "the law battle",not only can help us to understand his deeply tradition law and legal theory knowledge,but also can contrast his valuable through the claim of ethic faction.Let us see clearly when Chinese tradition encountered western law culture,as a feudal legislative secretary,his attitude and criteria,so give him a fair and evaluation in the battle of traditional and modern.The third part:Shen's legal opinion of China and the west.By the above parts,we study him by the practice of amending the law,and this part is going to show how appreciate his thinking "Harmonization and Transfixion" is in the end of Qing Dynasty that is and to make us know what he did in theory and practice in order to make his thinking become true by telling us some of his understanding about Chinese old law and western law.The forth part:a true and objective Shen JiaBen.In this part,we are going to analyze the essence of his thinking according to what his knowledge background is,what characteristics of the age he is in is,what effect may have to his thinking by his judge career,what the political condition is at that time and what his understanding about politics is.we are going to describe a true and objective Shen Jiaben by knowing him not only a feudal bureaucrat but also a legislator in recent society.What's more,we are to try the best to give him a objective evaluation in the terms of his contribution to subsequent legislation and development of law.