Essays on Law by Liang Qichao (Essential Edition)

Author: Fan Zhongxin (Editor)
Publisher:
Publish Date: 2004-03-01
Features: Liang Qichao was a prominent figure in modern Chinese history. He gained widespread fame not so much for his academic achievements, but for the "Wuxu Reform," at least in the eyes of the general public. It can be said that in the minds of the vast majority, Liang Qichao was a "reformer." The task of a reformer is to change certain important aspects of a nation's governance. In today's terms, this means reforming the system. To change old rules and establish new ones, reformers must naturally have a deep understanding of existing laws and even legal theory, and they must naturally have designs for new laws or new systems. Based on this fundamental understanding, I began to pay attention to Liang Qichao's legal achievements over a decade ago. Finally, in 1998, the centennial of the "Wuxu Reform," I compiled and edited the book Selected Works of Liang Qichao on Law. This book is a collection of ten lengthy essays selected from over one hundred of Liang Qichao's legal writings, and the title "Selected Works" was quite appropriate. However, for some reason, it was changed to "Collected Works" upon publication. In the late 19th and early 20th centuries, during a time of unprecedented national crisis and dramatic changes, when traditional scholarship was rapidly declining and new scholarship was still in its infancy, a legal academic field as vast and representing the highest level of the time—jurisprudence, constitutional law, administrative law, and international law—could only be led by Liang Qichao, with no second person of his caliber. The constitutional law essays included in this collection are the most numerous, among which Private Reflections on China's Congressional System and Comparisons of Constitutional Systems Across Nations are lengthy essays of over ten thousand words. In these works, Liang Qichao conducted the first comprehensive and systematic comparative studies of the structural frameworks of constitutions, the organization and powers of national legislatures, and the electoral systems of parliaments in various countries. His research subjects nearly covered all major countries with established constitutional systems at the time, such as the United States, Britain, Germany, France, Japan, Italy, Austria, the Netherlands, Belgium, Switzerland, Spain, and Portugal. These studies undeniably established Liang Qichao's status as the pioneer of Chinese constitutional law. This is evident from the fact that the Comparative Constitutional Law (authored by Wang Shiye and Qian Duansheng), which was republished frequently during the Republican era and is still sought after by publishers today, was clearly influenced by Liang Qichao's work. The articles on jurisprudence and legal history included in the collection, such as On the Development of Chinese Jurisprudence, The Evolution and Pros and Cons of Written Law in China, On Legislative Power, and essays introducing the theories of Montesquieu, Bentham, and Brunner (Brenner), also represent the highest level of jurisprudential and legal historical scholarship at the time. This is because, to this day, legal works published on both sides of the Taiwan Strait have not comprehensively disproven Liang Qichao's main arguments, and many still adhere to some of his conclusions. This is particularly evident in three aspects: first, his evaluation of the history of Chinese jurisprudential thought, where he identified the debates between the Hundred Schools of Thought and their successors as struggles between "laissez-faire" (Daoist), "rule by man" (Confucian and Mohist), and "rule of law" and "nationalism" (Legalist); second, his identification of ancient Chinese concepts like "heavenly mandate" and "following the laws of nature" as "natural law" ideas; and third, his recognition of ancient Chinese legal codes as mixed systems that did not distinguish between legal departments. As a reformer, Liang Qichao's immense contributions to Chinese law, apart from his exceptional talent, stem from three major distinctions he shared with ancient Chinese reformers. First, he was an "outsider" reformer. During the Wuxu Reform, he did not participate in the key decision-making or implementation. Compared to reformers like Li Kui, Shang Yang, Li Si, Sang Hongyang, Liu Yan, Wang Anshi, Zhang Jiuzheng, and Shen Jiaben, who held high-ranking positions and significant power, there was a vast difference. Because of this outsider status, I believe he was more like a legal scholar, much like the Roman legal scholars of ancient times. As an outsider, he was less constrained by the existing system and ideology, allowing his academic thoughts to roam more freely. Second, he was an "academic" reformer. Historically, reformers, apart from their proposed legal reforms and justifications, have left little else behind. Liang Qichao was different. He was one of the most "scholarly" reformers in Chinese history, and his contributions to academia, especially in law, far exceeded his actual role in the "One Hundred Days of Reform." The historical impact of his academic achievements will also surpass his influence as a reformer. This impact is primarily reflected in the enlightenment of democracy and the rule of law. Third, he was a reformer who embraced new academic ideas from the West. Ancient Chinese reformers, no matter how brilliant, drew their reform ideas and intellectual nourishment solely from Chinese thought, particularly Confucian and Legalist ideas, merely searching for justification and resources in their own ancient treasure troves. Liang Qichao, along with his teacher Kang Youwei, was one of the earliest reformers to seek justification and resources from foreign cultures. This determined the "pioneering" nature of his thoughts and academic achievements. It was also the reason why his ideas and theories were widely believed for a long time.