Failure Of Late Qing Dynasty Law Transplantation

Chinese traditional famlily law system is extensive and profound. As a distinctive feature of Chinese legal system, Chinese family law has a foundational function in traditional culture and social order. In the final phase of Qing Dynasty, with the introduction of western law, different thoughts like freedom and democracy started to spread. To save the country from the danger situation of domestic strife and foreign aggression, Shen Jiaben and other jurists started law reform and modification, the first large-scale western law transplantation in China’s history. Family law system became the target of that law reform. Although denied by the state law, family law, as a common law, still had its legal force in the society because of its historical inertia. The law transplantation in late Qing has many positive influence in China’s history. It pushed forward the law modernization, but didn’t lead China into a real legal country. It died together with the dynasty because of the special historical situation, the traditional family and ethic standard legal conception, and also because of the aim, method as well as thoughts of the transplantation. In the aspect of conception transplantation, personal standard conception, which is the key legislative spirit of western legal system, was not yet established in China at that time, while Chinese traditional social order had already been destroyed. The newly introduced legal texts and advanced system design divorced from the social reality. When the introduced western laws were struggling in the localization, the local laws were squeezed out from the history, which led the traditional laws into such awkward situation:Comparing with the new laws, they were labelled "antiquated" and "outdated". However, instead of the new laws, the traditional laws were the ones that were really governing the social relationship. Even in current society, we can still find the cases from the end of Qing showing the conflicts between traditional family law and the law transplantation.