The Shortcomings Of Rights Theory: A Study Of The Difficulty Of Judicial Independence In Late Qing Dynasty

The judicial independence has always been exotic for China. The first attempt ofthe judicial independence institutionalization in modern China is during thepreliminary constitutionalism in the late Qing dynasty. Although the judicial independence system was disappeared in the history with the collapse of the Qingdynasty, the academic community on this attempt never stopped. Learning fromhistory can know the rise and fall, the judicial of independence have great significancefor both the past and today.The perspective of this paper is different from most of the research, it selectedthe relationship between judicial independence theory and the theory of rights as thestarting point. Revealing the lack of rights theory is one of the main reasons for thejudicial independence system is difficult to build in the late Qing dynasty, whichfurther comparative analysis between East and Western way deep level analysis of theeconomic, political, and cultural reasons of the lack of theory of rights in traditionalChinese.The first part is the foundation of the paper’s architecture. This part discusses thejudicial independence theory and rights theory’s birth and development from ancientGreece to the modern, clarify the relationship between the rights and the judicialindependence: the former is the purpose, the latter is the means.The second part is in the contrast to the first part. The attempt to build thejudicial independence in late Qing dynasty is in the same process: from concept tosystem. Late Qing dynasty officials and people of insight are all pay attention to theWestern political system, but due to the the structure of knowledge and the differentpolitical status, combined with the background of the times so that they are not awareof the necessity to explore the relationship between the judicial independence and theright in West. So the judicial independence system had simply institutional transplantdriven by the belief of "national salvation" and "recover extraterritoriality".The third part is not only the focus of this paper but also is the difficulty. Theeconomic, political, and cultural aspects of modern Western is as a standard to explorethe reason of the rights theory’s shortcomings in the traditional Chinese. First, theeconomic base determines the members of the society’s hierarchy of needs. Modern Western’s developed capitalist economy has created plenty of social wealth for theneeds of its members, and is no longer meet the basic needs of life, but rose toattention and done their own interests. The traditional Chinese has been in aself-sufficient agricultural society, the lack of production make people have no timeto take into account other but for the basic food and clothing. Second, in political, thetraditional Chinese imperial power constraints are not lagging behind in modernWestern. Jun phase system or between the local governors and the central powerconstraints imperial power has played a certain role in restricting a certain extent, butbecause of the Confucian heritage that the monarch can simply by virtueaccomplishment without the need for external forces be governed, and thus lead topower restriction mechanism to face the monarch always holds a certain optimismwhich resulting system effectiveness dropped or ineffective. Third, the Confuciantradition, advocating ethical and traditional Chinese people’s lives are all integrated,ethical bottom line is everyone survive its meaning in a certain extent, even in the law.People pay more attention to the ethical compliance in order to obtain peace andself-sufficient life. Rights is unheard or turn a deaf ear for people. In modernWestern,people take individual rights, freedom as a legitimate and inevitable, as allthe legal system for the the individuals interests of concern, policy measures.Furthermore, it make the modern Western emphasis on the protection of human rightsin the legal system.The fourth part is the conclusion of this paper and the revelation part. Chinatoday compared to the traditional Chinese have taken place earth-shaking changes inthe physical environment, but the construction process of the judicial independencesystem was not all go well. In view of the close ties between the concept of individualrights and the judicial independence, it will benefit for the establishment of thejudicial independence system if we are strengthening the popularity of the rightsconcept and improving the rights system.