But no matter from the original intention or the final outcome of the person in charge, the results of the reform are somewhat unexpected. Not only failed to save the crumbling Qing Dynasty, but also aggravated the political turmoil in the late Qing Dynasty. If we interpret this reform from a more modern perspective, and regard it as an important aspect and part of China's centennial modernization movement, or as the beginning of China's legal modernization, then the evaluation of its gains and losses will become very complicated and difficult, and the existing popular conclusions always give people a simple and superficial feeling. As we all know, the revision of laws in the late Qing Dynasty was carried out under the catalysis of Europe and America. It is not the natural demand of China's own social development, but is used as a tool to get rid of internal and external troubles and achieve political utilitarian goals. Just like a premature baby in the shadow of her parents, it is difficult to ensure her mental health and physical integrity. Due to the lack of applicability beyond a certain stage of social, political, economic and cultural development, the modernization of legal system is based on quicksand, which is bound to become a mere formality and cannot obtain lasting support and vitality. Congenital deficiency, coupled with acquired weakness, directly leads to the lack of non-institutional consciousness and spiritual factors in the process of legal system transplantation and construction, thus encountering difficulties and paradoxes in the process of localization, which can be found in the reform in the late Qing Dynasty: it is precisely because of the congenital defects and mistakes of this reform that the road to legal system modernization in China, which began in Shen Shi, is doomed to be tortuous.
The achievements of amending the law in the late Qing Dynasty did not go up in smoke because of the fall of the Qing Dynasty. From form to content, it has had a far-reaching impact on later generations. In the early years of the Republic of China, its legislative system was based on the results of amending laws. Since then, China's legal system construction has struggled through many ups and downs of intermittent social changes, and has gone through a development process of nearly a hundred years, from studying law, learning Japan to learning Russia, and then adopting Britain and the United States. In a sense, this process is the continuation of the legal transplantation movement in the late Qing Dynasty. Therefore, its success or failure, gains or losses, all originated from the revision of the law in the late Qing Dynasty. From a broader perspective, the legal modernization movement presided over by Shen Jiaben is the epitome and important aspect of the modernization of the whole nation-state, which is closely related to the modernization of politics and economy. It is undoubtedly an interesting topic in the history of law to re-examine this reform that took place nearly a hundred years ago to understand its failure and development, which has profound reference significance for the future modernization of the rule of law.
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Different from the political reform movement in China's history, the legal reform movement in the late Qing Dynasty was rooted in the impact of advanced western civilization. After the Opium War, the Qing government faced increasingly severe economic, political and cultural disintegration and institutional crisis. Saving the country was the unanimous voice of the ruling and opposition parties at that time, and the reform was an important measure for the Qing court to respond after repeated weighing and hesitation. Nevertheless, if we simply use the shock-response model to describe the interaction between the revision of laws and external factors in the late Qing Dynasty, it is still not enough to reveal its inherent inevitability, nor can it explain many phenomena in the whole process. In the final analysis, the reform is still the result of the development of internal contradictions in China society, and we can't get rid of the shackles of the traditional mode of thinking, because from the guiding ideology of legal revision and the choice of specific programs, we have found a clear and identifiable mark of the traditional mode of "poverty changes, general rules last for a long time".
As early as1865165438+10.6, the Englishman Hurd (Robert? Hart) wrote "Watching" and put forward three suggestions to the Qing government: learning from westerners, rectifying finances and strengthening diplomacy. The Prime Minister's yamen thinks that "the situation at home and abroad can be carefully observed, but the investigation is outside the bureau and is not urgent" and shelved. British Minister Counsellor in China Wade (Thomas? f？ Wade) wrote "On New Recognition" and sent a note to the yamen of the Prime Minister of Qing Dynasty, in which he said something like "using it to promote advantages and eliminate disadvantages", hoping that the Qing government would change its course and make a difference. The General Administration thinks that its intention seems to be to find an excuse to quarrel and want to have something to do with China, so it sends this article and Hurd's previous article "Unbiased" to provincial governors for careful planning. The provincial governors reacted differently. Zuo Zuo thinks that this is just an attempt by Britain to control China's internal affairs and foreign affairs through political reform in order to gain a dominant position in China. Although it is mercenary, it is good for me and I might as well adopt it. Liu Kunyi, the governor of Jiangxi Province, took advantage of the topic to advocate the reform of the imperial examination. They represent the views of some westernization officials who hold local real power. In fact, the purpose of the British people is nothing more than to hope that the Qing court would conform to the world trend and modify the legal system, so as to promote and protect its commercial interests in China. However, because the British proposal did not involve specific measures, it became vague and did not attract enough attention within the Qing court. We can also see that China's fashion is arrogant, and his understanding of western politics is superficial. Although there was a self-improvement movement of "learning from foreigners to control foreigners" promoted by local power groups, in December of the sixth year of Tongzhi (1867), the British minister wrote to the Qing court, suggesting new laws to rectify the old inheritance. The general administration replied, "according to the western system, it will become powerful, and if the overall situation of current affairs does not hinder it ... it is also very willing." It can be seen that the Qing court had an ambiguous attitude towards institutional reform. On the one hand, blind confidence in tradition, suspicious of reform; At the same time, due to the world situation and the arrogance of big countries, we have to put on airs and prevaricate. Everything will change if it is not forced by "the overall situation of current affairs" [2](P4)
Since the Second Opium War, the international situation has tended to be calm and there has been a long period of peace between China and foreign countries. The self-improvement movement initiated by the Westernization School has also made remarkable achievements, and China even has a modern navy and army. Just as the Qing court indulged in the dream of "rejuvenation with the same light", Japan had taken the lead in stepping into the threshold of modernization. In 1950s, 19, Japan opened the door to American interest rate Parker. Since then, big countries have followed suit, signed commercial agreements and conducted trade unimpeded. Japan also volunteered to take total westernization as a way to save the country and strengthen the army. Unexpectedly, in the past few decades, it has risen remarkably in the East, competing with the great powers. In the Sino-Japanese Sino-Japanese War of 1894-1895, the powerful Beiyang Navy of the Qing court was overthrown, the ruling and opposition parties shook, and the Westernization Movement, which remained at the level of utensils, also failed. The great shame of losing to Japan alerted people of insight, so public opinion changed. It is said that reform can strengthen the country and restraint is enough to destroy the country. China is poor and weak, but she is inferior to others. For example, before the formulation of the Civil Code, the Draft of the Qing Civil Code was always the legal source for courts at all levels to hear civil cases, and later the formulation of the Civil Code was also based on it, which was cited by scholars as the legislative historical materials for the interpretation and application of the Civil Code. The system is inferior to people, and this conclusion has gradually become the knowledge of the media. The successful experience of Japan became an excuse for the reformists to call for political reform, which prompted the Qing court to decide to change course and reform the system.
The loss of extraterritorial jurisdiction is the most direct reason for amending the law. 1842, the Sino-British "Five Ports Trade Charter" recognized consular jurisdiction for the first time, and then the powers successively assisted and expanded its scope. As far as the Qing court is concerned, the loss of judicial sovereignty is a shameful thing anyway, so its heart of trying to restore rights still exists. At that time, public opinion generally used this as an excuse to amend the law. The precedent of Japan's successful recovery of extraterritorial jurisdiction after the Great Reform undoubtedly touched the Qing court greatly. 1902 "The Sino-British Treaty" wrote: "China deeply hopes to rectify China's laws and regulations with a view to making them the same as those of western countries, and Britain is willing to do its utmost to help realize this. Once China's laws and regulations, judgment methods and all related matters are properly ascertained, Britain will allow it to give up its extraterritorial jurisdiction. " [3] The promise of the great powers was bait, and it was hard not to be tempted by the humiliation of the ruling and opposition parties at that time.
There is no doubt that the above two factors are of great significance to the revision of the law. But for the Qing court, no shame can offset the concern about the security of the regime. How to maintain the rule is their primary task. If all the changes endanger the regime itself, it is impossible to be recognized. In this sense, the proposition of Zhang Zhidong's theory of "Chinese style and western use" is the fundamental reason for the final decision to amend the law. As the leader of the Westernization School in the later period and an important frontier official, Zhang Zhidong played an important role in the political arena in the late Qing Dynasty, and his thought of "learning from China and using the West" was fully reflected in his "Persuading Learning". In this article with the theme of "linking China and the West and weighing the old and the new", Zhang Zhidong classified the legal system as "use". "Husband cannot be changed, and morality and law cannot be changed; The Holy Way is not a tool, but an idea and a craft. " [4] The legal system is equal to tools and technology, which coincides with the deep-rooted theory of legal tools in China traditional society. Therefore, under the banner of "Chinese style and western use", the legal reform is gradually regarded as irrelevant, similar to the reform measures of past dynasties. "Persuade to Learn" was once famous and had great influence at that time. After reading it, Emperor Guangxu of Qing Dynasty thought that "it is of great benefit to hold a fair and just view, which is in the heart of scholars" and ordered all provinces to "widely publish it, urge it, teach it with the same name and discuss it". [5](P6) At the end of the Qing Dynasty and the beginning of the Republic of China, people were fearless and timid, and public opinion was empty. However, the revision of the law was released and the real chapter was moved, which has a lot to do with Zhang Zhidong's above remarks.
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In addition to Zhang Zhidong, some government officials and other westernization leaders also made positive contributions to promoting the revision of the law. In the process of pacifying the Taiping Heavenly Kingdom movement, a group of Han local bureaucrats were able to enter the upper level of the ruling group and form local real power. A typical example is Zeng Guofan, who was authorized by the Qing court to directly govern the military affairs of Jiangsu, Zhejiang, Anhui and Jiangxi provinces, and the central government "did not add remote control". They trained and practiced (such as the Xiang Army of Zuo and Zeng's brother and the Huai Army of Li Hongzhang), and because of their outstanding performance in suppressing the peasant revolution, organizing westernization and foreign negotiations, their position in the Qing ruling group was also improved, and their influence was constantly expanding. In terms of personnel, Li Hongzhang is the minister in charge of government affairs in the central government, and Zhang Zhidong, Liu Kunyi and others "also take distance as a mirror" in places. Most of these government officials are powerful people. They not only receive traditional Confucian education, but also have smart practical experience, pay attention to practical results and advocate political reform. They are worried about the real system and dissatisfied with the monopoly of the imperial clan nobles on the central power of the Qing Dynasty, so they actively advocate reform and self-improvement, seek national prosperity to save the crisis and consolidate and expand their power. At the same time, during the development of Westernization Movement, they directly or indirectly participated in the establishment of modern industrial enterprises (such as Jiangnan Shipyard, Hanyang Iron Works and other modern famous enterprises), and were closely related to the emerging national bourgeoisie and the bureaucratic comprador class, and actually acted as their political spokesmen. Therefore, their call for reform also reflects the demand for supporting national capitalist industry and commerce. Their enlightened attitude distinguishes them from blind, exclusive and complacent conservatives. At the same time, they were closely related to the Qing court, and adhered to the doctrine of the mean, which was different from the reformists who advocated radical reform. After the Gengzi Incident, the die-hards were liquidated, and the local strength faction became the reliance of the Qing court, which could exert influence on the appointment and removal of central personnel and internal and external decision-making. This is the best time for reform and reorganization. 190 1 year, Zhang Zhidong and Liu Kunyi compromised on the three preparations for the New Deal in the late Qing Dynasty, and elaborated on the reform ideas in administration, military affairs, law and education. The Qing court also tried to change its course, carry out reforms, establish the image of seeking innovation and change, and show public opinion at home and foreign powers. At the same time, it was rebuilt under the pretext of reform.
As mentioned earlier, in the process of suppressing the peasant movement, local governors seized the opportunity to monopolize local power and exert influence on the decision-making of the central government, which weakened the central government's control over the local government and obviously made it too big to fail. During Eight-Nation Alliance's invasion of China, the governors of southeast provinces disobeyed the imperial edict of the Qing court to declare war and stayed out of the war. Although this left room for the Western Empress Dowager to negotiate peace, it also increased the Qing court's suspicion of local forces, but it was forced by the internal and external situation and did not dare to make a difference. Therefore, for the Qing court, it is its secret intention to try to rebuild its authority through this traceless New Deal. 19 10 The imperial edict of the Law on the Establishment of Courts promulgated by the Qing court on February 7 said: "... the places where the powers of ministries and hospitals were not clear before were divided according to this naming festival ... From then on, the trial courts and courts have the right to enforce the law independently, and administrative officials shall not illegally interfere." [6] clues have been seen in this regard. Therefore, the reform advocated by the powerful faction won the recognition and support of the Qing court, which was eager to find a way out under the pressure of domestic and foreign diplomacy. It believes that "everything is feasible, that is, do your best at any time and choose to hold it" [7] and instructs them to "carefully select those who are familiar with Chinese and Western statutes, take a few members to Beijing, wait for the simple school and open a library for editing". [7] Shen Jiaben was played by Yuan Shikai, Zhang Zhidong and Liu Kunyi, which opened the prelude to the revision of the law in the late Qing Dynasty.
As soon as Shen Jiaben was ordered to practice law, he devoted himself to this unprecedented cause. Within a few years, he made rapid progress. He not only took the lead in abolishing torture and corporal punishment in the old law, but also promulgated or compiled a large number of new laws in a short time, mainly including: 1906 entered the criminal and civil procedure law (failed), 1907 put forward the draft of the big fresh criminal law (19 10 promulgated), The Law on the Establishment of Courts (promulgated by 1909) and the Law on Violating Police (promulgated by 1909, the Nationality Ordinance and the Smoking Ban Ordinance, 19 10) were incorporated into the Draft Criminal Procedure Law and the Draft Civil Procedure Law, and the Ministry of Commerce compiled the Draft Commercial Law of the Qing Dynasty. Since the compilation of the new law, the dispute between the old and new factions has never stopped. For example, in the process of formulating procedural law, there is a heated debate between the school of law and the school of ethics. The important reason why local governors oppose the introduction of the procedural law is that once the procedural law is introduced, it will inevitably bring about the corresponding reform and adjustment of the judicial institutions, which may touch the vested interests of the dignitaries and thus weaken their power. Shen Jiaben first chose to formulate the procedural law as "the first step to reform the old law and revise the new law". Firstly, because the procedural law is a traditional old law firm in China, it does not involve substantive interests and has little resistance. At the same time, it is also related to Shen Jiaben's view that the unjust abuse of power in criminal prisons in China is due to the lack of procedural guarantee and restriction, which enables corrupt officials to practise fraud and commit the crime of entering the people. He believes that if we want to change the old law, "criminal law is the most important thing", but if we want to change the criminal law, we must first start with the procedure. "In all laws, the criminal procedure law is particularly important. Westerners have a saying: criminal law does not harm good people, and criminal procedure law is not prepared, even good people suffer. " However, the new procedural law has aroused strong opposition from local rulers, among which Zhang Zhidong is the most representative. The following year, Zhang Yu published a new version of the Criminal and Civil Procedure Law for reconsideration, arguing that the draft "attacked the property system of western customs, damaged the defense of famous religions in China, created the trend of equality between men and women, and violated the teachings of sages." He believes that the new law should adapt to the national conditions and customs of China. And in the current situation in China, from judicial personnel to lawyers, jurors, witnesses, etc. Lack of professional ethics will only make "the litigants conspire to get what they want" and "the jurors who come to the lawsuit are all bad gentry who do not interfere in the lawsuit, that is, the litigants who are always willing to run rampant in the countryside". If we ignore the reality in China, the new law will only become a document, which will not help. [8] It should be admitted that despite conservative prejudice and competition for interests, Zhang's remarks really hit the key point of amending the law, that is, he paid too much attention to introducing foreign laws and regulations and ignored the national conditions. In China at that time, such a "fashionable" law lacked the basis of integration and the consistency with the unchanging social reality, which also determined the final outcome of this revision. When Yang Yuanji, a close friend, reflected on the gains and losses of this revision, he thought that "since the reform in the late Qing Dynasty, he was obsessed with Europeanization and went to Japan step by step. Most of the draft civil laws compiled were copied from Germany and Japan, and the textual research on China's inherent civil habits was unknown, which could not be applied for more than ten years." This statement was confirmed when it was put into bankruptcy law. At that time, the Ministry of Housing and Urban-Rural Development had a dispute with Shanghai, Beijing, Qian Shang and other places representing emerging private economic forces on the distribution order of bankrupt property, which led to the abolition of the new law. Another example is 1908. The Draft Commercial Law of the Qing Dynasty drafted by Kotaro was not adopted because the Ministry of Agriculture, Industry and Commerce directly copied the commercial laws of Japan and Germany, which did not conform to the national conditions. In a sense, the opposition's opinion is correct, because the "China Famous Religion" is not the same as the western legal spirit, and the consequences of plagiarism are unfortunately pointed out by the opposition. This is also the tragic root of China's legal modernization. three
During the whole ten years (1902-1911), Shen Jiaben directly presided over and participated in the whole process of law revision, which played a decisive role. His profound knowledge of China's traditional legal culture, his profound observation of China's political situation and his eclectic mind of saving the country through reform enabled him to shoulder the heavy responsibility entrusted by this period of history and made great achievements, though short-lived and limited. At the same time, Shen Jiaben's personal knowledge background and self-cultivation are not enough to make him a real leader of the legal reform movement, and his misunderstanding and limited understanding of western laws directly affect the temperament and fate of this legal reform.
1902, Shen Jiaben and Wu, who had studied in Britain, were appointed as ministers of law revision. This combination of traditional western learning is symbolic in itself. Shen Shi's appointment as the minister of law revision is the result of the efforts of Zhang Zhidong and others, but it is indeed the best choice for everyone. Among many radical or conservative unrealistic people, he is gentle but not extreme, pragmatic and not boastful. More importantly, he is an undisputed expert in this field. He is well versed in China criminal law and enjoys a long-standing reputation in the ruling clique of the Qing Dynasty. On the one hand, he has a deep understanding of China's traditional jurisprudence, on the other hand, he has rich practical experience. What is commendable is that he can clearly understand the source of prosperity and strength in the west while feeling the poverty and weakness of the country and the decline of the nation, and advocates that "people with lofty ideals should explore the origin of the rule of law, learn from the systems of various countries, observe their exchanges, and learn the essence to make up for the present." [9] Taking Japan as an example, he expounded the possibility, necessity and bright future of political reform: "In the old Japanese system, there were many Tang laws. After Meiji, European laws were adopted and it became a powerful country in decades. " His learning from the West is based on the patriotic desire of Qiang Bing, a rich country. On the political standpoint, he advocated change, sympathized with reformists, felt "miserable and painful" about the failure of reform, and summarized the experience and lessons of haste makes waste. The disadvantages accumulated by China for thousands of years cannot be eradicated overnight. Therefore, he prefers gradual and moderate reform. He also looked for contact points with new heterogeneous civilizations from China's traditional culture, and even thought that Chinese and Western laws were different but the same, that is, they all ran through "benevolence". Starting with benevolence, the spiritual fulcrum of legal communication between China and the West, he thinks that the reform is not based on the new law, and the essence of western law can be absorbed by the old school in China. "The essence of national laws cannot be divorced from the scope of China laws." [1 1] He advocates the rule of law in China, and thinks that in today's world, "the rule of law is in the ascendant", and [12] the implementation of the rule of law is the foundation of China's prosperity. Regrettably, although he realized that the rule of law in the west was different from that of China legalists, "the study of Shen Chao was aimed at engraving the nucleus, especially autocratic." And "Taixi learning aims at ensuring public safety, and everyone has the convenience of freedom" [13] has touched the essence of the problem, but like many intellectuals who advocated political reform and reform at that time, his understanding of the rule of law remained at the superficial and static observation level, and he could not understand and understand the rule of law from the height of spiritual origin, so he could not recognize the conflict and confrontation between the rule of law and China's famous religions, and could not see the revision led by him.
As a historical figure in the new and old times, the old ideas will inevitably leave a mark on him. While advocating good laws in various countries, he also emphasized that "the old should not be abolished, and the new should learn from it, so that the new law can be integrated and there can be no deviation." "In this era of the rule of law, if we don't talk about archaeology, we don't talk about China and France, and we respect Western law, the law is incomplete and can be completely integrated." [14] Here, it is certainly commendable for Shen Jiaben to emphasize that the reform should be suitable for China's national conditions and avoid mechanically "promoting in the world", but Shen Shi has neither given standards nor made successful practices. His profound Confucian cultivation and many years' experience in prison management enabled him to maintain his preference and nostalgia for the old legal tradition in China, so that he could not completely get rid of the shackles of traditional concepts. This coexistence of progress and limitations made the reform he presided over not only exceed the expectations of the Qing court, but also advanced in many aspects, with major defects and mistakes, and it was impossible to go too far on the road of splitting from tradition. At the same time, as a pragmatic and loyal old bureaucrat, he knew that whether he could get the support of the Qing court was the key to the success or failure of the reform. Therefore, he followed the legislative intention closely, and in the actual process of amending the law, he often succumbed to conservative forces and had to make concessions against his will. This was his limitation and also his tragedy. Although this can be attributed to the limitations of his personal understanding, the fundamental reason is always determined by the objective and realistic environment in which he lives.
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A convenient frame of reference to reflect on the gains and losses of law revision in the late Qing Dynasty is Japan. In view of the relative success of Japan's modern legal reform, we have to face up to and answer such a question: since modern times, Japan and China have faced the same challenges, and the starting point of the reform is similar. Why can Japan take advantage of the Meiji Restoration, and the road to legal modernization seems to be much smoother than that of China? The answer to this question is a matter of opinion. One of the representative viewpoints is that the reason why Japan can step into the ranks of modern countries in just a few decades is because of the advantages of Japanese traditional values, and then it comes down to the different temperament and experiences of maritime countries and mainland countries. This statement has internal basis, but it seems to ignore the decisive factors of social and economic changes. In fact, the smooth transplantation of Japanese laws first benefited from the relative maturity of the whole social, political, economic and cultural conditions, and also benefited from the successful transformation of Japan's own soil when transplanting foreign civilizations. Although traditional Japan belongs to the Confucian cultural circle with China, its specific social structure and development path have their own characteristics, which are different from gemeinschaft, which is highly similar to China. As early as the Meiji Restoration, a series of great changes have taken place in Japan's social structure: domestic organizations have been highly commercialized, and the policies of "music market" and "music seat" implemented by famous brands to ensure the supply of materials have basically laid a nationwide pattern of commodity circulation and supply, and caused tension among systems. A large number of commercial cities have sprung up, and powerful businessmen and commercial organizations have emerged, such as Zangyuan, Zhujianjian (Chamber of Commerce) and Wu Wen (Wholesaler), which sell crops. Capitalist relations of production have been greatly developed and infiltrated into rural areas, accelerating the bankruptcy and disintegration of small-scale peasant economy. As the pillar of the old economic system, the samurai class has also undergone qualitative changes. Politically, Japan's long-standing dual political authoritarianism (puppet government system under the name of the emperor) has led to the downward movement of Fu Weitian and the development of local decentralization, so that reform only needs to admit a fait accompli. On the surface, it looks brave, radical and vigorous. In fact, it is a long-term evolution of the new economic structure imposed by the organization of the new system, not just a miracle caused by the outstanding talents or dedication of a few people. Comparatively speaking, although traditional China was infiltrated by western civilization, its duration was short and its breadth and depth were limited. On the one hand, a few big cities (such as Shanghai and Guangzhou). ) highly prosperous, on the other hand, the vast rural areas outside the city still maintain thousands of years of old habits. The whole country has never undergone profound changes in politics, economy, culture, concepts and other fields to support thoroughly remoulded legal transplantation. In particular, what China lacks is the Enlightenment in the ideological field, and it has never experienced the Japanese "freedom and civil rights movement" in the late 1970s and early 1980s. Perhaps the enlightenment of the whole people is of decisive significance to the real reform of a country's politics and law.
Looking back at history today and bringing the revision of laws in the late Qing Dynasty into the vision of national modernization, we should be able to sum up some lessons. First, the motivation and purpose of the rulers are the key factors that restrict the success or failure of any political and legal reform. The revision of laws in the late Qing Dynasty was a gesture made by the rulers under the pressure of internal and external affairs. As an emergency strategic measure to save people's hearts or practice self-interest, it was not implemented sincerely. Nationalist passion, personal ambition and prejudice are mixed among them, which makes this reform muddy. Obviously, in this top-down government-driven reform arranged by the upper class and a few intellectual elites, the law is only regarded as a vessel and governance tool, so the new legal system established in this way naturally lacks foundation and vitality, and it is difficult to obtain universal acceptance and recognition. At the same time, doubts about the motivation of political reform and the tradition of legal instrumentalism also lead people to question the legitimacy of the law itself. Second, the reform has transcended the process of the times. As the confirmation and declaration of social structure and real life in a certain historical period, law is backward-looking and lagging. However, the reform and amendment of laws mechanically copied the western system, tried to imitate the static results of the dynamic evolution of the West for hundreds of years, and transplanted the good laws of Taixi capitalism into the semi-colonial and semi-feudal society of China, which actually implied the profound meaning of promoting economic and political reform and shaping modern society with the legal system, but often caused the harm of putting the cart before the horse. In the period of rapid social change, the large-scale legislative system not only fetters hands and feet, but also damages the authority and stability of the law, thus endangering the cultivation and cultivation of legal beliefs. Third, the reform was hasty, and the timing and specific operation of the reform were hasty. "Hundreds of years ago, it was said that the bad habits of millions of people, though extremely stupid, were long-lasting" (in Yang Shenxiu) and could never be easily changed overnight. In view of China's vast territory and large population, it is even more necessary to think carefully, plan comprehensively and establish laws and regulations. However, this reform focuses on the system of laws and regulations and ignores people's habits. It is eager for quick success and quick success, while ignoring the system and supporting reforms. It is only satisfied with its grandiose appearance, but fails to create a "situation in which various elements can be exchanged" in the grass-roots structure (in Huang Renyu). While striving for innovation, it is inevitable to miss and return to the traditional social value system. As an important part of the New Deal, reform is supplemented by imitating constitutional government and official system reform, but it lacks internal connection and echo. Although they have their own achievements, they can't communicate on the whole, and there are many obstacles in the middle, which are not in line with the national conditions or stick to the rules, and it is difficult to achieve practical results. The above three aspects have determined the fate of political reform and even the modernization of China's legal system from the very beginning, and they are beyond the reach of human resources.
In the case that modernization is still the main task and realistic demand of China's development, China's modernization will be realized after the middle of this century (according to the three-step strategic deployment of China's modernization). ) In a sense, the mission and troubles faced by Shen Jiaben a hundred years ago are still before the people of China today. Today's scholars have different opinions about this reform a hundred years ago, but they can't help but feel sympathy and respect for Shen Jiaben and his colleagues who presided over this Millennium reform, and share their anxiety, confusion and pain. Western philosophers have a saying: "In general law, it is extremely difficult to balance a big country or society. No talented person in the world, though knowledgeable and versatile, can expect to accomplish it by reason and meditation alone. In this work, we must concentrate everyone's judgment, take experience as the guide, and rely on time to improve. In its initial experiment, the insurmountable mistakes must be corrected when it is inconvenient in practice. " Without a broad historical vision and sincere concern for the country and the people, "taking Shen Shi as an example to realize the rule of law in China" will be an unbearable burden for our scholars [15].
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