Speaker: Dong Xiaobo Speech Venue: Nanjing Normal University Speech Time: January 2022
In ancient China, the special geographical location and the development process of legal civilization determined that the ancients created a unique set of complex and detailed legal systems in the long process of historical development.
Since the Qin and Han Dynasties, China has formed a legal governance society that "cannot be ruled for a day". The systematic evolution of ancient Chinese legal codes has a strong continuity, taking the Legal Classics of the Warring States Period as the source, and after more than 2,000 years of inheritance and development to the Qing Dynasty's Great Qing Laws, its systematic legislative technology has been continuously improved. The stable value concept and continuous improvement of legislative technology have created a high degree of rule of law civilization in ancient Chinese legal codes and become the symbol of the Chinese legal system. The state code of the Qing Dynasty, China's last unified monarchical dynasty, the Qing Dynasty (hereinafter referred to as the "Great Qing Laws"), inherits the legal tradition of China for thousands of years, has rich connotations, and can be called the crystallization of ancient judicial culture and cultural traditions.
In 1810, the Englishman George Thomas Staunton translated the "Laws of the Great Qing" into English and published it in London, so that Westerners saw the complete ancient Chinese code for the first time, and thus had an intuitive understanding of the specific legal provisions of ancient China. With this as a starting point, Westerners' understanding and study of Chinese law has entered a new stage, representing a peak in the spread of Chinese culture to the West since the Ming and Qing dynasties. In this lecture, we mainly introduce the inheritance and innovation of the Great Qing Laws and Regulations in traditional Chinese legal culture, including the purpose of the English translation of the Great Qing Laws and the stories behind them, as well as the English value of the Great Qing Laws and their influence on the exchange of Chinese and Western rule of law civilizations.
Dong Xiaobo is a professor at the School of Foreign Chinese of Nanjing Normal University, a doctoral supervisor, a doctor of law, a specially invited researcher of the China Academy of Rule of Law Modernization, the chief expert of the Jiangsu International Rule of Law Dynamic Research Center, the vice president of the Chinese Legal English Teaching and Testing Research Association, and the vice president of the Jiangsu Comparative Law Research Association. His research interests include the history of exchanges between Chinese and Western civilizations, legal linguistics, legal translation, language strategy and planning, and cross-cultural communication.
Qing Dynasty Xu Yang's "Gusu Prosperous Picture Scroll" (partial) data picture
Image of the Statutes of the Great Qing Dynasty
The Laws of the Great Qing Dynasty: The Master of Traditional Chinese Law
Chinese law, starting from the prototype laws and punishments of the Shang Dynasty, and then the "Nine Punishments" and "Lü Punishment" of the Zhou Dynasty, the "Book of Laws" written by Li Wu of the State of Wei during the Warring States period is the first written code of law known, and later the representative figure of the legal family, Qin Shangmartin, reformed the legal system of the Qin State on the basis of the "Book of Laws", subdividing the principled law into a law that emphasizes practical behavior.
After Qin Shi Huang unified the Six Kingdoms, the whole of China at that time adopted the Qin law, and the laws of the ancient Chinese dynasties were based on the Qin law. Later, the far-reaching impact of the reform of the ancient Chinese legal system lies in the Han, Tang, Song, Ming, and Qing dynasties. The "Great Qing Laws" that we want to talk about today is regarded by later scholars as the master of china's traditional feudal code, and the last participle code of China's feudal society that is in line with the ancient traditional legal system for more than 2,000 years, and the basic spirit and main system of feudal laws established since the Han and Tang Dynasties are fully reflected in the "Great Qing Laws". The formulation of the "Great Qing Laws and Regulations" fully considered the political practice and political characteristics of the Qing Dynasty, and carried out "increases and decreases in profits and losses" according to the specific domestic and foreign situations at that time, and developed and innovated the laws of the previous generation in some specific systems.
Beginning in the first year of Shunzhi, the Qing Dynasty "translated the Ming Laws in detail and participated in the state system", and the formulation of the code of law was formulated, and through the efforts of the three dynasties of Shunzhi, Kangxi and Yongzheng, the code gradually matured. After the Qianlong Emperor ascended the throne, he continued to order his ministers to reorganize the laws and regulations of the previous dynasty, which were completed in the fifth year of Qianlong (1740 AD) and named the Laws and Regulations of the Great Qing Dynasty. With its promulgation, the most systematic and representative written code of the Qing Dynasty was completed. After that, until the reform of the legal system at the end of the Qing Dynasty, the legal texts of the Qing Dynasty no longer changed, and the adjustment of the legal system of the Qing Dynasty was mainly carried out in the form of adding and changing the legal texts.
The Laws of the Great Qing Consists of 39 Volumes and consists of three parts:
The first part is a "law map" composed of 8 charts, namely "six stolen goods", "redemption cases", "redemption of old diseases within the limit of the limit", "falsely accused of light as heavy redemption", "negligent killing and injury redemption", "five punishments", "prison equipment" and "service system", and each chart is accompanied by a corresponding "judicial interpretation" to stipulate the specific sentencing scale.
The second part is all the legal provisions of 436 articles composed of 7 articles, and each article has the title of the legal article. For example, the first part is the "Law of Famous Examples", with a total of 46 articles, the content mainly involves important legal systems such as "five punishments", "ten evils" and "eight discussions", as well as the specific crimes stipulated for "adulterers", as well as the punishment of the 7 basic types of crimes and the various legal provisions for exemption from punishment for their conviction and sentencing.
The third part is the arrangement of specific legal provisions. According to the title of the specific articles, the titles of the six departments of the law of officials, household law, etiquette law, military law, criminal law, and labor law are arranged and combined in turn, including "job system", "formula", "household service", "field house", "marriage", "warehouse", "course", "money and debt", "market", "sacrifice", "ritual system", "palace guard", "military and government", "Guanjin", "stable and pastoral", "postal station", "thief", "thief", "human life", "fight", "curse", "litigation", "stolen goods", "fraud", "adultery", "miscellaneous criminals", "arrest and death", "prison break", "construction", "river defense", "various doors", A total of 436 legal provisions and more than 1,800 regulations have the same legal effect as the legal texts " as appropriate" and legal texts.
As the last feudal code in ancient Chinese history, the Great Qing Laws and Regulations have the following main features:
First of all, the laws are integrated and rigorous and thorough. Although the combination of laws and regulations is not the original creation of the Legislators of the Qing Dynasty, "therefore the law is certain and not easy, the example is light and the world is heavy, and the way of the middle is at any time" and "the law is the statute of a generation, and the example is the judgment of the time", which also reflects a major feature of the mainland feudal code. The Qing Dynasty began to revise the law from the second year of Shunzhi to the fifth year of Qianlong to compile the "Great Qing Laws", which lasted nearly 100 years, accumulated rich experience, and assessed the gains and losses of successive dynasties, so the content of the laws was quite detailed. "Where law firms do not have preparations, they must use examples to weigh their size and weight, so that they can be more than appropriate", and its legal characteristics of combining stability and flexibility have been called the peak of the ancient Chinese legal system by Western researchers of ancient Chinese legal science.
Secondly, the law sets up a great law, and the case conforms to people's feelings. "Great Qing Laws" is a multi-departmental law, multi-level mixture, it follows the Ming Dynasty edicts, follow the ming Dynasty since the legislative system practice, once established, in addition to the official provisions "five years a small repair, ten years a major repair", others are strictly forbidden to change without authorization, its 436 articles, in fact, the legal system moralization and legislative idealization solidification unchanged model, the example is with the change of the times and growing, that is, the stability of the law and the variability of real life to solve the problem by increasing regulations.
Third, the punishment is the mainstay, and the punishment is heavier than the people. According to the criminal law provisions of the Great Qing Laws and Regulations, which account for nearly half of the total provisions of the laws, civil cases are usually decided by criminal means. Judging from the distribution of the number of volumes, of the total of 39 volumes, 15 volumes related to criminal punishments are added, and if the criminal punishment clauses in other volumes that are originally civil legal cases are added, the total number of criminal law provisions in the Great Qing Laws is conservatively estimated to account for more than 70% of the total law. Therefore, rather than saying that the Great Qing Laws and Regulations are a legal text that integrates various laws, it is better to say that it is a legal text that is mainly based on criminal punishment and supplemented by civil, and in the specific judicial process, the judgment method of most civil cases is always the same as that of criminal cases. In addition, from the perspective of the form of the legal text, the "Great Qing Laws" basically follows the form of the Ming Law, and the overall framework consists of two parts: the "Law of Names" and the "Six Laws". The first chapter is the "Law of Nominal Examples", a total of 46 articles, which stipulate the composition of the crime in principle, which is equivalent to the "General Provisions" part of modern law, and makes general provisions on the application of the law in terms of criminal name, punishment, pardon, accomplice, voluntary surrender, etc., and gives corresponding legislative interpretations.
Third, the role of "example" overrides the law. From the promulgation of the Great Qing Law Collection in the Qing Dynasty, the legal texts were recognized as the laws of the descendants, and when they were revised, they were only adapted to the conditions of the times and prepared at any time to supplement and revise the deficiencies of the laws. From more than 400 articles in the "Great Qing Law Collection and Interpretation Supplementary Rules" in the early years of the Kangxi Dynasty, to the 824 articles in the "Great Qing Law Collection" in the third year of Yongzheng (1725 AD), 1049 articles in the "Great Qing Laws" in the fifth year of Qianlong (1740), 1456 articles in the thirty-third year of Qianlong (1768 AD), 1766 articles in the fifth year of Daoguang (1825 AD), and 1892 articles in the ninth year of Tongzhi (1870). On the one hand, the rapid increase in cases reflects that the rulers of the Qing Dynasty had to resort to new cases in order to prevent extrajudicial adultery and improper crimes; on the other hand, because the form of the cases is relatively flexible and convenient to elevate the will of the rulers to law at any time, it is valued by the rulers, and its role and effectiveness are above the law, in fact, the situation of "if there is a rule, the use case does not use the law" and "if there is a case, it is ignored, and the new one is left to the law".
The English translation of the Great Qing Laws provides conditions for the West to understand the ancient Chinese law at that time
Westerners have long been concerned about Chinese law. The Chronicle of Marco Polo, written by Marco Polo in the Yuan Dynasty, already has many descriptions of the state of the legal system in China. In the 17th and 18th centuries, the Jesuits came to China, and they compiled their observations in China into books, some of which deal with the Chinese judicial system, such as Matteo Ricci's Notes on China and Zeng Dezhao's Chronicle of the Great Chinese Empire. Enlightenment thinkers Montesquieu, Quesnay, Voltaire, etc. all learned about Chinese law by reading the writings of the Jesuits. However, there are certain flaws in the writings of the Jesuits, who sometimes do not express them very accurately or even fallaciously, either due to a lack of understanding of the Chinese legal system and its lineage, or due to personal understanding and understanding. In 1810, the Englishman Thomas Staunton translated the "Laws of the Great Qing" into English and published it in London, and westerners saw the complete Chinese code for the first time and had an intuitive understanding of the specific legal provisions of China. With this as a starting point, Westerners' research on Chinese law has entered a new stage.
In 1792, the British government sent a macartney mission to China, and Sir George Leonard Staunton (father of Thomas Staunton) was appointed secretary of the mission, and the then 11-year-old Thomas Staunton traveled to China as a probationary attendant. Thomas Staunton, who already speaks four languages, learned to Chinese on a ship to Beijing. In 1797, he entered Trinity College, Cambridge, where his father withdrew due to unfair distribution of freshman awards. In 1798 he was offered the post of Chinese clerk at the British Merchant House in Guangzhou by the East India Company, and in 1808 he was appointed as a translator for the Merchant House. In 1800, shortly after Thomas Stunton arrived in Guangzhou, the "Park Witton" (also translated as "Tianyou") incident occurred, when British sailors opened fire on Chinese fishermen, wounding one person and the other falling into the water and dying. The Qing government demanded that the British investigate the matter thoroughly and hand over the murderer. The British side made a request, hoping that British officials would attend the trial of the case, which was regarded by later generations as the beginning of the issue of consular jurisdiction that affected the centuries of China's modern history. In the process of handling the case, Hall, chairman of the East India Company's Business Center in Guangzhou, found that the Chinese government was handling the case on the basis of the "Great Qing Laws", and hoped that the British could also obtain a copy of the legal provisions printed by China at that time, but Ji Qing, the governor of Liangguang, was reluctant to hand over the relevant provisions to the British, and only extracted 6 articles from them and printed 100 copies. So Hall asked Thomas Staunton to translate the 6 articles into English. The six provisions are: (1) Suspected theft and killing, that is, according to the theory of fighting and killing, it is intended to be hanged. (2) Throw a shotgun at the murderer, kill for the sake of reason, behead, kill (injure) people, and charge the army. (3) The sinner has been detained and killed without resisting arrest, and hanged by the doctrine of fighting and killing. (4) Falsely accusing liang of theft, except for the actual crime of capital, the rest are not divided into subordinates and are charged with the army. (5) Those who injure a person by mistake shall be judged by the theory of fighting and injury, and the severity of the injury shall be examined, and the guilt shall be sat down. (6) Those who are drunk and have trouble, the dispatcher, who has a miasma of smoke and miasma, is a slave. Perhaps it was such a translation task that sparked Thomas Staunton's interest in studying Chinese law and translating the Great Qing Laws. He believes that the reason why the British encountered some problems in the process of commercial trade with the Qing Dynasty was mainly because "there was a wrong or imperfect understanding of the spirit of Chinese law." In order to fully understand Chinese law in order to better safeguard his country's interests in the event of conflict between China and Britain, Thomas Staunton managed to find two different versions of the Great Qing Laws, and after comparison, he began to translate the entire Version of the Great Qing Laws. In 1808 he completed a translation of the Code on a ship returning to England. After returning to England, the booksellers Khadr and Davis bought the rights to the book for £500. Thomas Staunton then spent a long time on the translator's preface and appendix to the Great Qing Laws, until The TaTsing LeuLee was officially published in London in March 1810. This is an important event in the history of legal and cultural exchanges between China and the West, marking that the image of Chinese law has entered a new stage in the West, and "Westerners can finally read The provisions of Chinese law directly through translation."
Thomas Staunton's translation of the Great Qing Laws was based on the basis of the Qianlong five-year promulgation. He translated all 436 verses of the Great Qing Laws as the main text, and the appendix to the English translation contains a small number of translated example texts and some related edicts. The book is divided into six parts: preface, table of contents, pre-text citations, main text, errata, and bibliography of publishing houses. In the main text, Thomas Staunton divides it into seven parts, which contrast with the structure of the Great Qing Law, namely, General Law, Fiscal Law, Civil Law, Ritual Law, Military Law, Criminal Law, and Lawrelativeto Public Work.
It should be noted that Thomas Staunton's translation of the Laws of the Great Qing dynasty only translated the 436 laws in the Qianlong Five-Year Edition, while the other 1042 regulations did not have a comprehensive translation. In response, he explains: "Please allow the translator to freely abridge the original, while striving to make the arrangement more systematic, the style more pleasant, and the wording used more harmoniously." Thomas Stonton believes that this kind of deletion is very necessary, if the entire content of the "Great Qing Laws" is translated, it will appear that Chinese law is too cumbersome and disorderly, and after the deletion, the reader can easily understand the basic content of Chinese law.
It is worth noting that Thomas Staunton arranged the translation of the example text very cleverly, "these regulations are not codified in the text as in the original version, but are listed in the appendix." It is particularly remarkable because of its small amount." In addition, some imperial decrees and the Beijing Di Bao were also added independently. Regarding the edicts of the Qing emperors, Thomas Staunton believed that although its contents were not included in the Great Qing Laws, they had the same effect as the laws. In order to avoid possible comprehension deviations in the Chinese-English translation, Thomas Staunton also added small notes to the English translation of the Great Qing Laws, which mainly played a role in dredging and clarifying, and were mostly sandwiched between the corresponding lines of the law or the example. Finally, he numbered all the laws with Roman ordinal numbers in front of them, and marked the number of examples attached to the original laws of the Great Qing Laws after the laws. "This detail makes up for the shortcomings of traditional Chinese codification techniques, that is, not paying attention to the serial number of the articles." It can be said that Thomas Staunton's practice reconciled the reading habits of China and the West and facilitated the dissemination of the Great Qing Laws in the West; however, the main purpose of Thomas Staunton's actions was to enable the British in China at that time to quickly grasp the laws of the Qing Dynasty, in order to safeguard the interests of China and deepen The European understanding of the laws and society of the Qing Dynasty. The translation completed for such translation purposes and strategic roles is indeed convenient for Western readers to accept, but it cannot accurately restore the meaning of the text, resulting in a large number of distortions and distortions, and thus making the general agreement between the two different legal systems impossible to achieve in this sense.
The Value and Influence of the English Translation of the Great Qing Laws
Thomas Staunton believes that the Great Qing Laws are the first-class books in China, while western missionaries have not paid enough attention to them, legal works are rarely translated, and the English translation of the Great Qing Laws can be regarded as a deficiency in legal translation.
After the publication of the English translation of the Great Qing Laws, it received great attention in British society. Many important British media such as the Edinburghreview, monthly review, and Chinese repository have reported on Staunton's translation of the Great Qing Laws, and some have commented on it. The Edinburgh Review commented: "Although Britain's great trade relations with China have a history of more than a hundred years, this work has been directly translated into our language for the first time... There is certainly no literature that gives us a reliable picture of the situation and characteristics of a country as much as their laws themselves. Not only that, but the French and Italian versions of the book were translated and published two years later from the English version (1812). The fact that all countries were translating the Great Qing Laws proves that the laws of the Qing Dynasty became a universal demand in Europe at that time. Later, the Spanish edition of the Great Qing Laws (1862) was also published. Later, in 1876 and 1924, the French published a new French translation.
It is worth noting that after the publication of the Great Qing Laws, Thomas Staunton became recognized in Britain at that time as an "expert familiar with the spirit of Chinese" and had influence in Parliament because of his familiarity with Chinese law. In 1833, Thomas Staunton, then a member of the British Parliament, based on the so-called backwardness of Chinese law, proposed a bill to Parliament: to require the British government to set up courts in China to hear cases of British people in China. The bill was passed. The British Parliament accordingly enacted a decree unilaterally giving the British consul in China the power to hear cases relating to British subjects. After the British occupation of Hong Kong after the Opium War, the British authorities realized that using the Great Qing Laws as a basis for judicial adjudication would help them consolidate their colonial rule in Hong Kong. At that time, the British referenced the Use of the Great Qing Laws, which was the English translation of thomas Staunton's translation of the Great Qing Laws.
Since the publication of the English translation of the "Great Qing Laws" in 1810, European and American scholars have conducted a century-long study of Chinese law, which roughly presents two major characteristics: One feature is that before the Opium War, foreign sailors, merchants and Chinese clashed from time to time, and criminal cases involving foreigners mainly occurred during this time, so Europeans and Americans mainly paid attention to the criminal provisions in the "Great Qing Laws". After the Opium War, with the signing of a series of unequal treaties, the West not only obtained consular jurisdiction in China, but also allowed to open factories and establish church missions in China, and there were more and more civil disputes between people coming to China and Chinese. Another characteristic is that before the Opium War, the attitude of Europeans and Americans towards the Great Qing Law was mainly critical. For example, in May 1834, the China Series (volume III) published an article by Morrison devoted to homicide in China, which was a certain representation of Westerners in China at that time. After the Opium War, Western scholars gradually bid farewell to the concentrated criticism of the Great Qing Laws and Regulations, and began to pay attention to civil relations and introduce some principled systems. By the beginning of the 20th century, some scholars interpreted the Chinese legal system from a cultural perspective and explained the rationality of Chinese civilization.
From the perspective of later generations, the translation of the Great Qing Laws at that time was very important and precious for the West to understand Chinese law, and since then Westerners "can find reliable evidence through their laws, and these laws are not the empty words of prejudice of Chinese admirers or haters, but the rich and original written laws of this country." On the one hand, it clarifies the controversy in the West about the image of Chinese law before the 19th century, especially during the Enlightenment era. The translation of the Great Qing Laws in 1810 allowed the West to analyze the image of Chinese law from the perspective of an empirical text of Chinese law, and to try to find a balance between praise and criticism. However, we must also realize that on the other hand, the image of ancient Chinese law in the West after the praise and criticism of the historical ups and downs, after the translation of the "Great Qing Laws" tended to be stable, but behind this so-called stability, but behind it also contained the West's rejection of the image of Chinese law at that time and the conviction of its own legal legitimacy. At the beginning of the 19th century, under the influence of the English translation of the Great Qing Laws and Regulations, "Western jurisprudence centrism" began to take shape. In the eyes of Western scholars at that time, the backwardness and closedness of the image of ancient Chinese law gradually became an image completely different from that of the Enlightenment era in the West, becoming a new "other".
The Historical Limitations of the English Translation of the Laws of the Great Qing Dynasty
Frankly speaking, the publication of the English translation of the Great Qing Laws is not accidental, it is a product of the times. On the positive side, the English translation of the Great Qing Laws and Regulations is a dialogue in the history of Legal and Cultural Exchanges between China and foreign countries, which has promoted the external dissemination of Chinese legal culture, but from the perspective of the historical era in which it is located, it also objectively marks the leakage of "a large number of precious legal materials" of the Chinese feudal dynasty at that time. These contents were indeed used by the British colonialist invaders later, which in turn caused harms such as interfering in China's judicial trials and interfering in China's judicial justice at that time. The British Critic said: "We sincerely congratulate Sir Staunton on his success, and he is entitled to the best of the public thanks (thebestthanks), because his translation contains a great deal of valuable information that we have not had before." The documents in the appendix are directly derived from Chinese and are the most interesting part of the translation, making the material clear. This passage from the English Review elevates the translation of the Great Qing Laws to a political level, with a clear practical purpose.
In the late 18th and early 19th centuries, Britain established a maritime colonial hegemony and constantly sought to expand its colonies overseas. Ancient and rich ancient China was an important target of its expansion, and the British government sent envoys to China several times to study China's political and legal system and foreign relations. After the completion of the English translation of the Great Qing Laws, it became the most indispensable script for deciphering the laws and society of the Qing Dynasty in the West at that time, and to a certain extent, it adapted to the overseas expansion and colonial needs of Britain at that time.
Guangming Daily (2022.02.26 10th edition)
Source: Guangming Network - Guangming Daily