＂Maintenance-oriented Reformer＂： the Judicial Officer of Modern China in the Great Change.

During the Second World War, on January 11th, 1943, China, Britain and the United States signed the Treaty on Abolishing Britain’s Extraterritorial Jurisdiction in China and its Related Privileges, and the Treaty on Abolishing America’s Extraterritorial Jurisdiction in China and Dealing with Related Issues, which officially announced that Britain and the United States abolished their extraterritorial jurisdiction and other privileges in China. Soon, Belgium, Norway, Brazil, the Netherlands, Sweden and other countries successively cancelled their relevant privileges in China. As a result, China’s judicial sovereignty was recovered. After January 11th, it became the "Judicial Festival" of the Republic of China, both to commemorate and to promote the spirit of the rule of law.

Twenty-four years later, on January 11th, 1967, Xie Guansheng, a witness of China’s modern legal reform, a celebrity in the legal field and then the president of Taiwan Province’s "Judicial Court", said at the commemoration of the Judicial Festival in Taipei: "Sixty years ago, China began to reform the original legal and judicial system, and the motive at that time was to abolish the consular jurisdiction of outsiders … So all the reform measures at that time had to give up others as much as possible in order to meet the hopes of outsiders. China legal system, originally promoted as one of the five legal systems in the world, has its inherent advantages, so it has to give up completely. At that time, because he was single-minded and focused on recovering legal rights, he had his own difficulties and could not be criticized. However, today’s review seems to have been overkill. " Xie’s words, such as "giving up oneself and following others", "completely giving up one’s love", "having no choice but to make difficulties" and "overcorrecting", are quite heavy, which shows the profound introspection of a generation of legal professionals on the process of modern legal system reform in China. However, since the historical process of returning from heaviness to heaviness and returning from introspection to introspection has started, it is irreversible.

Ordinary people in Beijing during the Qing Dynasty

Since the beginning of modern times, with the western countries’ strong ships and strong guns, colonial conquest and trade exchanges, exchanges and interactions around the world have become increasingly frequent, and China is no exception. Since the late Qing Dynasty, the arrival of the "West" has gradually brought China into the world system. China’s modern legal system and judicial system are transplanted from the west, and the judicial officer must have some attributes of its origin; At the same time, China’s modern magistrates were born in China after all, and could not help but be influenced by China’s tradition and the reality at that time. In short, the modern legal professionals in China, including judicial officers, are the product of the interweaving and interaction of Chinese and Western factors, ancient and modern factors, old and new factors and so on.

As we all know, the world legal system since modern times can be roughly divided into Anglo-American legal system and European legal system. There are great differences between the judicial officers in the two legal system countries in terms of historical tradition, system design and reality. Since the late Qing Dynasty, China’s legal system reform has been far from Europe and close to France and Japan. Accurately speaking, China transplanted the European legal system through Japan.

If we take Japan, which transplanted the continental law system, as a reference, it is not difficult to find the similarities between Japanese (before World War II) judges and modern China judges. In Japan before World War II, although judicial officers enjoyed a high reputation in terms of knowledge and personality, they "actually belonged to the bureaucratic group" and lawyers were unreasonably placed under the supervision of prosecutors. Although among the legal professionals at that time, there were indeed many of them who were full of backbone, defended themselves and resolutely resisted improper interference, their efforts were often weak because of the lack of institutional guarantee, and they even had to pay a heavy price for it sometimes. Generally speaking, in Japan before World War II, the construction of the judicial system "took improving authority as the basic theme". This is consistent with Japan’s overall goal of strengthening the state bureaucracy and building a modern nation-state before World War II.

Since the modern judicial officer system in China was transplanted from the European legal system, many attributes of judicial officers in the European legal system were naturally inherited by China. In modern China, although the voice of "judicial independence" is very high, the judiciary is only a part of the political power and one of the many "yamen" in the country, whether in the establishment of the national system or in the actual operation process; Judicial officers serving in judicial institutions are actually no different from civil servants (civil servants) in other institutions except for their professional division of labor. This is basically the same as the situation of judicial officers in European legal system countries. Modern legal professionals in China mainly include judicial officers, lawyers and legal researchers. In fact, they do not constitute an interrelated legal community. Cai Shuheng, a jurist, believes that China’s "legislators, scholars, judges and lawyers are each part of the whole law" and their relationship should be "extremely close", but this is not the case at present. "Even if they don’t deny each other, at least it is not easy to find their proper relationship. Generally speaking, the attitude of scholars ignores the relationship between laws and regulations and society in principle, and they are either followers of French and precedent supremacy, that is, they are trapped in the desperate situation of self-first; When legislators make laws and regulations, the temptation of legislation seems to be greater than the stimulation of reality; The function of a judicial officer is nothing more than an institution that applies syllogism. The reconciliation between ideal and reality, the relationship between laws and regulations and life, and the balance between justice and utility are all irrelevant. As for lawyers, professional consciousness is the guiding principle of all actions, and the justice and interests of the society and the country are within the scope of not affecting personal interests.There is room for its existence. Therefore, the understanding and practice of law and law with China society as its content are inevitably different from each other. The law is the law, losing its inherent meaning and even losing its existence. " Obviously, there is a lack of real connection between various parts of the legal professional groups in China. From the source of legal system transplantation, the various components of legal professional groups in European legal system countries are also generally the same, which is "a combination of fragmented individuals"

In addition to inheriting many attributes of the European legal system, the situation in China in the late Qing Dynasty and the Republic of China also profoundly influenced the individual and group of judicial officers. In modern China, "change" has become the most prominent dynamic feature. "Change" is first manifested in the change of political system. In the reform of the New Deal in the late Qing Dynasty, especially in the late New Deal, the imitative constitutional reform was introduced, and the establishment of political system and related system were transplanted to the west as a whole, so the political system reform was unprecedented. It was in this historical context that the reform of laws and the establishment of new-type judicial institutions were initiated in the late Qing Dynasty, and the first batch of "new-type" judicial officers in modern China came into being. Based on the historical facts, it is not difficult to find that the first batch of new-type judicial officers came from two sources: criminal officers in the traditional era and new-type (study abroad) legal and political personnel.

Taking Tang Xuan, a criminal officer before and after the official system reform in the late Qing Dynasty, as a case, we can generally show how a traditional criminal officer turned into a modern judicial officer (judge) and his observations and feelings in the process. As a criminal officer, Tang Xuan personally experienced the process of setting up the Dali Court and the Ministry of Justice and the dispute between the Ministry and the Court. In this process, Tang himself also completed the transformation from a criminal officer to a judge. In the face of the judicial reform accompanied by the reform of the official system, Tang Xuan had little psychology and actions to take the initiative to deal with this change except consciously knowing some new knowledge of law and politics. After the reform of the official system, Tang Xuan, as a new judge, still belongs to the category of traditional criminal officials on the whole. His knowledge subject is still traditional jurisprudence, and judicial reasoning and trial methods have not changed much. It can be said that his body is new but his heart remains the same. This reflects the "old" path of the first batch of "new" judicial officers in modern China.

The first batch of modern judicial officers in China also had many new legal and administrative personnel, and "newcomers" and "new knowledge" were thus injected into the modern legal reform in China. Taking Huang Zunsan, a law student studying in Japan in the late Qing Dynasty as a case, the author focuses on his reading structure, old and new knowledge and daily life during his study abroad. The research shows that Huang’s reading includes three parts: foreign language, law major and daily reading, in which foreign language occupies a considerable part of time and energy. Even in daily reading, he often improves his foreign language level by reading foreign language newspapers and books. In addition, there are various club activities and making friends, which naturally squeezes the study time of law major. Huang’s preference for ancient books and self-cultivation books in his daily reading reflects how "new" the "newcomers" who have been trained in the new era and new environment are, and the old resources and factors may be beyond his previous imagination. Huang’s study of law was decided in the second half of the year, and it was a helpless choice, but it did provide a lot of new ideas and new horizons. His interest was in the public law fields such as constitution, administrative law and international law, which reflected the problems faced by students studying in Japan and their countermeasures.

On the basis of investigating individuals, this book also pays attention to the formation of judicial officers in the late Qing Dynasty. With the New Deal moving towards constitutionalism in the late Qing Dynasty, the separation of powers and judicial independence became one of the ideal prospects and practical directions of the New Deal reform. In the thirty-second year of Guangxu, the Qing government set up a new type of supreme judicial institution-Dali Court, from which a new type of judicial officers in China emerged. During the Xuantong period, the selection of judicial officers gradually embarked on the road of standardized examination and selection. After Xuantong’s two-year judicial examination, a large number of legal and political personnel joined the ranks of judicial officers. In Xuantong’s two or three years, a group of more than 1,000 judicial officers was formed, of which "newcomers" accounted for nearly half. The difference between the old and the new did exist in the group of judicial officers in the late Qing Dynasty, but in fact it was more about "new people are not new" and "old people are not old". Due to the system changes such as the New Deal and constitutionalism in the late Qing Dynasty, many traditional personnel have realized modern transformation, from "old people" to "new people", and most modern new judicial officers have been transformed from traditional criminal officers, candidates and other officials. Many judicial officers, who were originally responsible for resolving social disputes and maintaining the existing order, failed to do their jobs with peace of mind, and many became revolutionaries. From this point of view, the group of judicial officers in the late Qing Dynasty was rather "different in appearance and spirit" and only had its "shape". In the process of the formation of this group, it reflects how people inherit and transform in the process of China’s transformation from tradition to modernity, and how change and invariance coexist.

The "change" of modern China is also reflected in regime change. In the third year of Xuantong, the Revolution of 1911 broke out. In the revolutionary wave, the Republic of China was founded, the Qing emperor abdicated, and China entered OneRepublic. At the time of Dingge, the experience and feelings of Shen Jiaben, the key figure in China’s legal reform and the leader of the legal circles in the late Qing Dynasty, in the first year of the Republic of China were quite special. It contains a lot of information about the interaction between historical figures and the turning times, such as the frequent changes in the judicial center of the Qing court after the outbreak of the Revolution of 1911, many contradictions and conflicts in the handover of old and new regimes, the complicated face between the old and the new, and so on. As the leader of the legal circles in the former Qing Dynasty and the witness of regime change, Shen Jiaben felt not only the changes and disturbances of the current situation, but also the silence of a dying old man who "stopped dealing with politics" between the front and the back of the historical stage and the center and the edge, and cared about politics without participating, which provided a soothing and deep background for the historical changes at the time of Dingge Reform.

After the Revolution of 1911, China realized the regime change from the Qing Dynasty to the Republic of China. It is generally believed that the "revolution" is more of a compromise, so the continuity between the two regimes is obvious, especially the personnel system. Actually, not really. In areas that emphasize professionalism, such as the judiciary, under the face of inheritance, the hidden "revolution" quietly occurred. In the early years of the Republic of China, the judicial reorganization was mainly carried out when Xu Shiying, the chief justice, was appointed, and the appointment qualification of judicial officers was "those who graduated from law and politics for three years and had experience", which caused a large number of old-fashioned judicial officers to leave and a large number of new judicial officers to become judicial officers, and the personnel changes were great. Justice is a profession that emphasizes practical experience. The young people of law and politics who have just left school are in charge of judicial affairs, and there are many problems. In order to solve this problem, Xu Shi’s successors, Liang Qichao and Zhang Zongxiang, carried out judicial officer screening, aiming at selecting "qualified and competent talents" and achieved certain results. Undoubtedly, Xu Shiying’s reorganization measures are conducive to promoting judicial specialization and professionalization, and building a modern country ruled by law, which is also in line with the context of the times when it is difficult to "get rid of the old" but "get rid of the new" after the Ding Reform of 1911. The problem is that in the transitional period between the old and the new, we should not rush into it. The change of the times has its own elimination mechanism and transformation method for "old people". By the decade of the Republic of China, there were few traces of judicial "old people", which shows the speed of judicial personnel metabolism in the early years of the Republic of China.

Undoubtedly, the political changes in China have profoundly affected the progress of the legal system and judicial construction. Therefore, when it comes to the difficulties of the judicial construction of the Beijing government in the Republic of China, it is true that the academic circles mostly attribute them to external factors such as warlord interference, financial distress, and lack of talents. However, the internal problems of the legal profession are also worthy of attention. Focusing on Yu Shaosong, a judicial administrative official, we can generally show the relationship network, daily friends, professional awareness and other aspects of the legal profession during the Beijing government period, and also show the complex ecological change process inside and outside the judiciary: in the early stage of the Beijing government, the interference of military and political forces in the judiciary was not obvious or serious; In the middle and late period, with the imbalance of national civil and military structure, the transfer of central and local power, the separation of warlords and financial distress, the external ecology of the judiciary deteriorated seriously. The deterioration of external ecology not only leads to the serious obstruction of judicial operation, but also leads to the surge of internal undercurrents and "legal tides" in the system. It is worth noting that while emphasizing specialization, professionalism and community, the judicial system has gradually formed a relatively independent, autonomous (or closed) internal ecology, resulting in a variety of intertwined relationship networks, which are mostly not positive factors for the legal system construction. From this point of view, the judicial system of the Beijing government in the middle and late period can be described as "internal and external difficulties." In fact, this is also the embodiment of the political and social situation of the Beijing government in the middle and late period of the Republic of China in the judicial field.

In addition, the "change" of modern China is also reflected in many aspects, such as ideology, culture, society and so on. As the witness of this period of history, the individual judicial officers have all experienced and experienced the changes of modern China. From this point of view, it is a meaningful question how the changes of modern politics and legal system in China interweave and interact with the career path of legal professionals. Taking Xie Jian as an individual sample, it is not difficult to find many problems in the career path of modern judicial officers in China: the formation of personal relationship in the process of legal and political education and the role of this relationship in individual career; The impermanence of the coming and going of the judicial officer practitioners and the changeable occupation show that the judicial officer position is not attractive to legal persons; Wait a minute. Modern (western) knowledge of law and politics is more a tool for making a living, and most of them fail to give spiritual sustenance and inner belief to legal professionals. They seek their lives more from traditional culture. In a sense, their place to settle down is more Chinese and traditional.

China’s modern legal system reform profoundly shapes legal professionals. If viewed from the opposite direction, what about China’s modern legal system reform in the eyes of legal professionals? This is also a question of forgiveness. Taking Dong Kang and Xu Shiying, the witnesses of China’s modern legal system reform and legal celebrities, as cases, this paper shows that the direction and function of modern China’s legal system are changing, and there is a debate between "East and West" and "Left and Right". In their early years, they generally thought that the direction of China’s legal reform was towards the west, but in their later years, they paid attention to the East, and thought that the construction of China’s own legal system could not be separated from the support of "Han family’s heritage"; In their early years, they tended to use the legal system to transform China society, as an important means in the overall social project of pursuing Qiang Bing as a rich country and realizing national rejuvenation, but in their later years, they realized that the construction of the legal system could not be separated from the maintenance of the existing order. Of course, this change is closely related to the personal experience of legal professionals, the situation of the times, the international pattern and other factors.

Judging from the situation of European legal system countries, the design of China’s own judicial system after transplantation, and the actual situation in the late Qing Dynasty and the Republic of China, judicial officers are an integral part of the bureaucratic system in modern China. Since the late Qing Dynasty, especially after the Sino-Japanese War of 1894-1895, change has actually become the consensus of China’s intellectuals and political elites. The only difference is the way and the priority of change. Facing the grim situation at the turn of the 19th and 20th centuries, the Qing court carried out the New Deal and sought to get rid of the crisis, which objectively promoted China to move from a traditional monarchy-cultural community to a modern nation-state. After the Ding Revolution in 1911, the government of the Republic of China continued this historical process. The legal system, judicature and the group of judicial officers are the components of this transformation and construction process. In other words, the national governance system, including the judiciary, must be reformed to build the legal system and judicial system needed by the modern nation-state. Only in this way can we survive in the world pattern of disputes among nations. From this point of view, whether consciously or unconsciously, the new judicial officers are the constructors (participants) of modern China.

In the eyes of the builders of the modern nation-state, the existing social folk customs in China are backward and must be reformed. Judicial reform is one of the important channels, and it is social, deep and indispensable. Therefore, as a judicial officer in the bureaucratic system of modern China, he becomes a reformer of social folk customs. However, as far as the legal profession is concerned, all kinds of contradictions, disputes and conflicts are solved through institutionalized and procedural channels in a stable environment and the existing order. The essence of the judicial officer profession is to confirm and maintain the existing order, and the judicial officer should be the defender of the existing order. Of course, this does not deny that laws should adapt to social changes. Therefore, Pound, a giant in western legal history, pointed out that "laws must be stable, but they cannot be static", which just illustrates the tension relationship between legal stability and change.

It is worth reminding that there is a clear difference between changing laws to adapt to social changes and transforming society with laws. The problem is that in modern China, most of the time, laws are used to transform society. Cai Shuheng, a jurist, refers to Chen. Since the late Qing Dynasty, the extreme significance of "strong political reform" is nothing more than two points: first, the old law is out of date, and it is a strong performance that the old law becomes a new law; The second is to promote the development of society through the role of new laws or to transform society with laws, and reminds: "The role of laws in promoting social development is relative, in other words, laws can only add fuel to the flames of social development, not make waves." What Cai said, from the opposite direction, shows that in modern China, laws are mostly used to transform society and promote social development. Under such a legal system, modern judicial officers in China naturally become reformers of social folk customs.

To sum up, in the historical stage of China, the judicial officer plays a triple role: the builder (participant) of the modern nation-state, the reformer of folk customs and the defender of the existing order. In fact, it is not easy to balance these three roles, and there will be contradictions or even violent conflicts from time to time, which has led to many legal and judicial problems in modern China. Because modern China is in a state of change as a whole, "unchanging" only has relative significance, so construction and transformation are absolute, while maintenance is relative. Therefore, the judicial officers in modern China can be described as "maintenance reformers".

(This article is excerpted from the conclusion of Li Zaiquan’s "Legal Professionals in a Changing Era: Individuals and Groups of Modern Magistrates in China", Social Science Literature Publishing House, March 2018. Authorized by The Paper, the original text is omitted, and the title is now drafted by the editor. )