Legal Reform in the Late Qing Dynasty
The Crisis of the Qing Legal Order
The late Qing legal reforms, initiated in the aftermath of the Boxer Rebellion (1899–1901) and the humiliations of the unequal treaty system, represented the first systematic attempt in Chinese history to modernise law on Western models. The crisis that compelled reform was multidimensional. The Qing dynasty’s military weakness had been exposed by its defeat in the First Sino-Japanese War (1894–1895) and by the international military intervention that crushed the Boxer Rebellion. The unequal treaties imposed on China after the Opium Wars (1839–1842, 1856–1860) had established a system of extraterritoriality — the right of foreign powers to try their nationals in China under their own laws — which was both a humiliation and an impediment to Chinese sovereignty. Foreign powers declared themselves unwilling to relinquish extraterritoriality until China modernised its legal system.
Internally, the traditional Chinese legal order was facing unprecedented challenges. The Qing Code (Da Qing Lü Li) — the comprehensive penal and administrative code that had governed China since 1644 — was a criminal law code that did not recognise the distinction between civil and criminal matters. Commercial disputes, property relations, and family matters were governed largely by custom, lineage rules, and local mediation rather than by formal law. The economic modernisation that had followed the Self-Strengthening Movement (1861–1895) — including the development of railways, telegraphs, modern banking, and industrial enterprises — created legal needs that the traditional system could not satisfy.
The Self-Strengthening Movement itself, though primarily focused on military and economic modernisation, had generated an awareness of the need for legal reform. Chinese diplomats and scholars who travelled to Europe, Japan, and the United States returned with knowledge of Western legal systems. The translator and reformer Yan Fu (1854–1921) translated major works of Western legal and political philosophy, including John Stuart Mill’s On Liberty and Montesquieu’s The Spirit of the Laws, introducing Chinese readers to concepts of the rule of law, separation of powers, and individual rights. The intellectual foundations for legal reform were thus being laid even before the political crisis forced the Qing government to act.
Wu Tingfang and Shen Jiaben: The Reformers
The Qing government appointed two extraordinary figures to lead the legal reform: Wu Tingfang (1842–1922) and Shen Jiaben (1840–1913). Wu Tingfang was a cosmopolitan figure unique in late Qing officialdom: educated in Hong Kong and London, called to the bar at Lincoln’s Inn, he had served as Chinese minister to the United States, Spain, and Peru, and had a deep knowledge of Western law. Shen Jiaben was a traditional Chinese legal scholar who had served in the Board of Punishments and had an encyclopaedic knowledge of Chinese legal history. The partnership of Wu and Shen — one trained in Western law, the other a master of Chinese legal tradition — was essential to the success of the reform.
The reform commission was established in 1902 by imperial decree, with a mandate to revise the Qing Code, draft new codes, establish modern courts, and create a judicial examination system. The commission undertook the monumental task of translating and studying Western legal codes. Japanese law served as the primary conduit for German legal influence: Japanese jurists, who had themselves received German legal training during the Meiji period, assisted with the translation of German codes and legal texts into Chinese. The decision to adopt the German legal system as the model for Chinese codification reflected the influence of Japanese legal development and the perceived suitability of the German civil law system to Chinese conditions.
Shen Jiaben’s contribution was particularly significant. He insisted that legal reform must be based on a thorough understanding of Chinese legal history and that imported Western legal principles must be adapted to Chinese social conditions. He conducted extensive research on Chinese legal institutions, edited and published historical legal texts, and argued that Chinese law had its own developmental trajectory that should inform the reform process. His approach was one of synthesis: the new Chinese legal system should combine the best elements of Chinese and Western legal traditions, not simply transplant foreign codes.
The Abolition of Lingchi and Judicial Reform
One of the first and most visible achievements of the reform was the abolition of lingchi (death by slicing, also known as “the death of a thousand cuts”) and other cruel punishments in 1905. Lingchi had been a feature of Chinese penal practice for centuries — reserved for the most heinous crimes, including treason and patricide — but had become a symbol of Chinese “backwardness” in Western eyes. The memorial to the throne requesting abolition, drafted by Shen Jiaben, argued that the punishment was inconsistent with the principles of benevolence (ren) that were the foundation of Chinese civilisation. The imperial decree of April 1905 abolished lingchi, dismemberment of corpses, tattooing of criminals, and the exhibition of severed heads.
The reform of judicial institutions was equally significant. The Law on Court Organisation (Fayuan Bianzhi Fa) of 1909 established a modern court system. The law provided for a four-tier court hierarchy: local courts (difang shenpanting), district courts (difang fayuan), high courts (gaodeng fayuan), and the Supreme Court (Da Li Yuan). The reform introduced the principle of judicial independence — the separation of judicial and administrative functions, which had been combined in the person of the local magistrate under the traditional system. Judges were to be professionally trained, selected through competitive examination, and given security of tenure.
The reform also established the institution of the procuracy (jiancha ting), responsible for the investigation and prosecution of criminal offences, and created the first modern Chinese bar association (lüshi gonghui). By 1911, over 3,000 new-style courts had been established throughout China, and a modern legal profession was beginning to emerge. The reform of legal education was a corollary of judicial reform: modern law schools were established, including the Law Department of Peking University (1904) and the Imperial Law School (1906), which taught Western law alongside Chinese legal studies.
The Drafting of New Criminal and Civil Codes
The reform commission produced the first modern legal codes in Chinese history. The Draft Criminal Code (Xinglü Cao’an) of 1907 was the most important of these. The draft, prepared under Shen Jiaben’s direction, abolished the traditional five punishments — beating with the light bamboo, beating with the heavy bamboo, penal servitude, exile, and death — and replaced them with a modern system of punishments: death (by shooting, replacing decapitation and strangulation), penal servitude for life or fixed terms, imprisonment, fines, and deprivation of rights.
The Draft Criminal Code distinguished between felonies (zhongzui), misdemeanours (qingzui), and contraventions (weifa zui), following the tripartite division of European criminal law. It established the principle of legality — no punishment without law — though the principle was not absolute, and the code retained provisions recognising customary law as a supplementary source of criminal law. The code abolished the traditional system of “eight deliberations” (ba yi) that had granted special procedural protections to the nobility and high officials, establishing the principle of formal equality before the law.
The Draft Civil Code (Minlü Cao’an) of 1911 was the first Chinese attempt at a comprehensive civil codification. The draft followed the German Pandectist system, with books on General Principles, Rights in rem (property), Obligations (contracts and torts), Family, and Succession. The Family and Succession books attempted to reconcile Western legal concepts with Chinese customary law, preserving the patriarchal structure of the Chinese family while introducing modern principles including monogamy, the prohibition of concubinage, and the right of divorce. The Draft Civil Code was not enacted by the Qing — the dynasty collapsed in October 1911 before the code could be promulgated — but it provided the foundation for the civil codification of the Republican period.
The Constitutional Movement and the Principles of the Constitution 1908
The Qing government’s response to demands for constitutional reform followed the model of the Meiji Restoration in Japan. In 1905, five senior officials were sent abroad to study constitutional systems in Japan, Europe, and the United States. Their reports recommended the adoption of a constitutional monarchy on the Japanese model, with the Emperor retaining substantial powers but sharing legislative authority with an elected parliament.
The Principles of the Constitution of 1908 (Qinding Xianfa Dagang) — a document prepared under imperial direction — established the framework for constitutional government. The Principles declared that “the supreme power of government is vested in the Emperor, who exercises it according to the provisions of the Constitution” — the principle of imperial sovereignty. The Emperor retained command of the armed forces, the power to declare war and make peace, the right to summon and dissolve the parliament, and the authority to appoint and dismiss ministers. The parliament would have the power to approve legislation, to approve the budget, and to question ministers, but its powers were limited and it could not initiate constitutional amendments.
The Principles were followed by the Outline of Provincial Assemblies (1908), which provided for elected provincial assemblies with advisory functions, and the Regulations for Constitutional Preparation (1908), which established a nine-year transition period to constitutional government. The Provisional Regulations for the National Assembly (1910) provided for a partially elected National Assembly, which met in 1910 and immediately clashed with the imperial government over the budget, the pace of reform, and the composition of the cabinet.
The constitutional movement was overtaken by the Wuchang Uprising of October 10, 1911, which rapidly spread throughout the southern and central provinces. The Qing government, in a desperate attempt to preserve the dynasty, issued the Nineteen Articles (Shijiu Tiao) on November 2, 1911, which conceded a genuine constitutional monarchy with a cabinet responsible to parliament. The concession was too late: the provinces declared independence, and the dynasty abdicated on February 12, 1912. The late Qing legal reforms, though incomplete, had established the framework that the Republic of China would inherit and develop. The translation of codes, the training of jurists, the establishment of courts, and the intellectual foundations of legal modernisation — all achieved in the brief period from 1902 to 1911 — provided the foundation for Chinese legal development throughout the twentieth century.