Chapter 4. Shen Jiaben: Founder of Modern Law in China

In 1840, when the Opium War broke out, a baby was born to the Shen family of Wuxing County in Zhejiang Province. The baby was Shen Jiaben, whose courtesy name was Zichun and alias was Jiyi. His father, Shen Bingying, was a scholar who had succeeded in the highest imperial examinations as a Jinshi in the imperial examinations and served as a director at the Ministry of Justice and the prefect of Anshun, Guizhou.

In his youth, Shen Jiaben lived and studied with his father, who was then working in Peking. He was talented, intelligent and hard-working. In the first year of Emperor Tongzhi (1862) in the Qing Dynasty, he succeeded in the imperial examinations at the provincial level as a Juren. In 1883, he became a Jinshi. He was highly respected by Pan Wenqin, Minister of Justice, and served as the Prefect in Zhili (now Beijing and the surrounding regions) and Shaanxi provinces. Later, he worked as the Prefect in Fengtian (now Liaoning) Province and the concurrent Auditor and Assistant Chief of the Law Office. He was later promoted to higher positions. In 1886, he published his first law book, Ci Zi Ji (Tattoo as a Penalty), which examined the origins of the ancient Chinese criminal penalty system and discussed its strengths and weaknesses. It was of great value for the study of the Chinese criminal penalty system and its evolution. The renowned law expert and the Vice Minister of Justice, Xue Yunsheng, prefaced this book with great praise. Later, Shen Jiaben authored and edited more law books, including Ya Xian Bian (Collection of Legal Cases), Lü Li Za Shuo (Legal Cases Study) and Xing Fa Za Kao(Criminal Law Study).

Shen Jiaben hated the extraterritorial rights enjoyed by Western powers. He had always in his mind reforming the legal system and fighting for national sovereignty. After 1900, when renewing the trade agreements with China, the United Kingdom, Japan, the United States, and Portugal indicated that if China’s laws could be reformed in tune with the West, they could abandon their consular jurisdiction in China. Therefore, the Qing government instructed Yuan Shikai, Liu Kunyi, and Zhang Zhidong to recommend scholars “familiar with Chinese and Western laws” to revise the Qing Code, so that it would be consistent with the laws of other countries. It was against this backdrop that Shen was appointed as the Secretary of Enactment. Since 1901, he served as the Vice Minister of Justice, Secretary of Enactment, and concurrent Vice Minister of Law and Minister of Justice. On May 15, 1904, the Enactment Office was officially open. The office was mainly responsible for translating and studying the laws of various countries, and compiling Chinese legal works. Subsequently, a large number of foreign laws and regulations were translated into Chinese as a reference for the revision of the Qing Code. He introduced an unprecedented number of laws and legal works into China, which made it possible to compare the legal systems with other countries and paved the way for reforming the old code of China and enacting a new one. In order to complete the translation, Shen conducted extensive research and analysis, identifying the meaning of texts and terms. His efforts played an important role in the birth of modern Chinese law. Since the Qing Dynasty rulers and most of the bureaucrats knew little about law, he requested the Qing throne to set up a law school to train new legal talents. Shen was subsequently appointed as the dean of the Imperial Law College. In 1906, China’s first imperial law school officially opened. Under the guidance of a philosophy of “connecting China with the world”, Shen employed Japanese law experts, such as Okada Taro, to teach at the new college. He supported Taro in his publication of Notes on General Theory of Law, which served as a textbook for the college. The opening of the Imperial Law College was a pioneering step in the history of law in China, laying a good foundation for the beginning of modern legal research and education.

In 1908, work on the Qing Civil Code began. Japanese scholar Matsuoka Yoshioka was in charge of drafting the chapters of general provisions, creditor’s rights, and property rights. Chen Lu, who had studied in France, and Gao Zhong and Zhu Xianwen, who had studied in Japan, were in charge of drafting the chapters of relatives and inheritance. By the end of 1910, the draft Qing Civil Code was complete, with a total of 1,569 articles in the five chapters of general provisions, creditor’s rights, property rights, relatives, and inheritance. In 1911, the draft entered the legislature for deliberation, when the Xinhai Revolution broke out in October, which overthrew the Qing Dynasty. As a result, the draft civil code was never formally ratified. It remained a draft for later generations to remember.

Shen Jiaben was an active advocate of the rule of law and adhered to the rule of law in the struggle between propriety and law. He stood firmly for the abolition of slavery and the ban on human trafficking. Thanks to his efforts, his ideas were finally incorporated into the revised law. That was the first time that human dignity and equality was embodied in Chinese legislation, as a masterpiece in history.

There was a legend of this law revision. Empress Dowager Cixi once convened a meeting on the key suggestions for the revision, including human dignity, domestic slavery, equality between slaves and their masters. Shen Jiaben had made the suggestions. He expected a bad result, which might cost him his life. When he left home in the morning, he told his wife that if he should not return after midday, she should prepare for his funeral. As expected, the debate on the abolition of slavery was heated, with very different ideas opposing each other. The meeting didn’t come to an end until well after midday. When Shen Jiaben returned home, his wife had already set up a mourning hall and was crying for him. There is no way to tell whether the legend is true or not, but it shows how fierce the debate on the abolition of slavery in China had been.

On February 12, 1912, with the abdication of the Qing Emperor, Shen Jiaben ended his political career. After the founding of the Republic of China, many people called on Shen to serve as the Minister of Justice and promote the development of Chinese legislation. Yuan Shikai, the provisional president of the Republic of China, had the same idea. But Shen, who had been in politics for nearly 50 years, was determined to retire. He was already over 70 years old. What he wanted most was not the continuation of his political career.

From then on, he refused to engage in politics on the grounds of illness. He was fully dedicated to writing and completed his book Han Lü Zhi Yi (Notes to Chinese Laws). The book achieved an unprecedented scale and depth in its research into Chinese laws.

On July 12, 1913, Shen Jiaben died in Peking at the age of 73, leaving the world grieving for the loss of a master of law.