Top 10 Legal Scholars of China in the 20th Century

Author: Hu Yougen / Country: Mainland China
Publisher:
Publishing Date: 2006-08-01
Features: This book provides an excellent summary and overview of the process of legal modernization in China. The ten legal scholars written about by the author—Shen Jiaben, Wu Tingfang, Wang Chonghui, Gu Weijun, Wang Shijie, Shen Junru, Xie Juezhai, Shi Liang, Yang Zhaolong, and Peng Zhen—are indeed important legal scholars in China. Their ideas and activities not only reflect individual advanced legal thought but also embody the will, tendencies, and trends of the nation, people, government, society, era, and current affairs. Therefore, the biographies of these ten great legal scholars can be seen as a microcosm of China's legal reforms and legal modernization in the 20th century. The book is rich in content, novel, and based on solid and detailed materials. For example, the former includes Xie Juezhai's discussion on the relationship between democracy and civil rights, and the independence of the judiciary, Wang Shijie's criticism of the Nationalist Party's "party governance," and Yang Zhaolong's understanding of extraterritoriality; the latter includes Wu Tingfang's suggestions for handling the "Mutual Fight Case between Chinese Sailors and Nagasaki Police," which is supported by materials from Wu Tingfang Collection, Complete Works of Li Wenzhong, and Diary of Weng Tonghe. These are just a few examples. The book is also accessible and engaging, combining both narrative and academic rigor, making it a timely summary of the evolution of China's legal modernization in the recently concluded 20th century. Currently, there are relatively few works on this topic. The book is also straightforward and captivating. For each legal scholar, the author first summarizes their outstanding contributions and significant achievements as the title, followed by a concise outline of their five key aspects of legal activities and thought, providing a clear and comprehensive understanding.
In 1912, the Nanjing Provisional Government of the Republic of China was established, and Wu Tingfang was appointed as Minister of Justice. He advocated for the principles of separation of powers and judicial independence in a republic, as well as the free establishment and open activities of political parties. Around 1912, domestic political life was highly active, with numerous political parties emerging one after another. Wu Tingfang was involved in over ten of these parties. Although the constitutions and regulations of these parties were not all drafted by him, they were consistent with his political beliefs. In April 1912, when Yuan Shikai came to power, Wu Tingfang withdrew from public life. Yuan later offered him the position of Senior Advisor and later awarded him the title of "First Class Meritorious Person" to recognize his contributions to the establishment of the republic, but Wu declined both offers. In the following five years, he devoted himself to writing and scholarship, holding no public office. In some short essays, he emphasized the importance of law, legislation, and law enforcement. In the preface to Introduction to the Constitutional System of France, he stated that since ancient Athens, where statesman Solon enacted laws, Athens became dominant; since Lycurgus enacted laws, Sparta grew powerful; since the Twelve Tables of Law were established, Roman civil affairs flourished; and since the Magna Carta was issued, the foundation of England was solidified. France, as a pioneer of republicanism, had unparalleled constitutions and political systems. The establishment of the Napoleonic Code marked a new era for private law, and the publication of the constitution marked a new era for public law. Since the five laws were promulgated, France has continuously advanced, with people becoming wealthier and the nation stronger. Therefore, "the strength or weakness of a nation depends entirely on the spirit of its legal system." For this reason, the people of our country should focus their efforts in this area and strive to follow France onto the "new stage" of the 20th century. In Opportunities for the United States in a New China, he mentioned that we should draft and enact new civil, commercial, and criminal laws. These laws would be reviewed and approved by the National Conference and then implemented, with further revisions to be submitted to the Constitutional Convention. We already have a Provisional Constitution, and the National Assembly will also draft a new constitution and elect the president and other officials, passing new laws as well. At the same time, he discussed the aspects of justice and law enforcement, hoping to establish a Supreme Court with powers similar to those of the U.S. Supreme Court, and higher courts in each province. In handling cases, he advocated for the jury system and the abolition of torture, as well as reforms to punishments. Specifically, "effectively eliminate all forms of torture during interrogation, and for those sentenced to death, only hangings and electrocutions will be used. For a small number of convicted individuals, fines, or deprivation of liberty, or both, will be imposed." In other words, interrogation must not involve torture, and punishments for the guilty should be fines or imprisonment. These are all new judicial systems different from the feudal old laws. In some of his specialized works, he detailed the kind of democratic republic system China should adopt and introduced and referenced foreign democratic, free, and equal ideals. Outlines of Governing the Republic of China is particularly noteworthy. He refuted the erroneous argument of Qing Dynasty old officials that "the Republic is inferior to the Qing Dynasty"; discussed the "principles of China's republican transformation," "the legal system the Republic should adopt," "the independence of the judiciary," and "the relationship between the judiciary"; and proposed improvements in education, finance, currency, law, personnel, examinations, supervision, foreign affairs, religion, marriage, and other areas. He also made special arguments on issues such as freedom of speech, equality, and freedom. In the end, he expressed full confidence in the development and future of the Republic of China, stating that "the false theory of restorationism harms the republic" and "the Republic's governance will ultimately achieve results." In Notes on a Visit to the United States, he introduced the rise of the United States, its government, the system of central and local governance, the relationship between the United States and China, as well as its business, education, etiquette, culture, and arts, and the freedom and equality of the United States. He also introduced Chinese culture and a comparison between Chinese and Western cultures, primarily expressing admiration for the democratic republic of the United States.
(IV) Opposing Restorationism and Defending the Provisional Constitution
In early 1916, Yuan Shikai declared himself emperor. Wu Tingfang strongly opposed it, pointing out that the eulogies and the pro-imperialist advisory and petitioning groups did not represent public opinion. The Cao'an Society, which advised Yuan on his imperial ambitions, sought to restore the monarchy, but "the people did not agree." On March 22, 1916, under the opposition of the entire nation, Yuan was forced to abolish the monarchy but still wanted to remain president. Wu immediately issued a public statement opposing Yuan, presenting ten reasons why Yuan could no longer serve as president. He demanded that Yuan return to his hometown for rest or go abroad for observation, as he could no longer participate in politics. After the abolition of the monarchy, there was much debate about which legal system should govern the country. Some advocated for the Constitution of the Republic of China of 1914, which was drafted under Yuan Shikai's control, while others proposed using the Provisional Constitution of the Republic of China. Wu Tingfang proposed reviving the Provisional Constitution of 1912 and opposed the Constitution of 1914. He argued that at the beginning of the Republic, everything was unprepared, and the provisional government was established in Nanjing, drafting the Provisional Constitution of 1912, which was the foundation of the nation. As for the Constitution of 1914, whether it was legally valid had to be investigated—by whom and in what manner it was organized! At the time, the Beijing government was established, and delegates were elected from all provinces to form the Senate and the House of Representatives. Soon after, all members of the National Assembly were dismissed, and the two houses were closed. Therefore, it was not done according to established procedures. Only by convening a constitutional convention to amend the constitution was it announced and implemented by the head of state on May 1, 1914. Moreover, the constitutional convention consisted of 60 people, who, on the surface, seemed to represent all provinces, but in reality, 78% of them were government officials. Such legislation in a republic was unprecedented and was laughed at by the world—even in constitutional monarchies, such a practice had never been seen. Therefore, this constitution cannot be considered national law and is meaningless. As a result, he demanded that the Beiyang government not recognize the Constitution of 1914 and instead restore the Provisional Constitution of 1912. He suggested that the government issue an order: "Upon review, the Constitution of 1914 does not conform to the standard organization of a republic and cannot be recognized. Therefore, the Provisional Constitution of 1912 is hereby restored." P56-57