Shen Chia-pen (20 July 1840-27 April 1913), the foremost scholar of the late Ch'ing period in the field of Chinese law. He was best known for his efforts to modernize the traditional legal system, and his reforms served as inspiration for the law codification programs of the 1920'sand 1930's.
Born into a prominent scholar-official family, Shen Chia-pen was a native of Wuhsing, Chekiang. His grandfather, Shen Ching-yuan, was a chü-jen of 1801 who taught in a hsien school; and his father, Shen Ping-ying, received a chin-shih degree in 1845 and spent much of his career in the Board of Punishments, where his legal knowledge won him the respect of his superiors. However, in 1864, having served for a time as prefect ofAnshun, Kweichow, Shen Ping-ying was dismissed from office on charges of insubordination. Shen Chia-pen received a traditional education in the Chinese classics, and he acquired an interest in law from his father.
About 1860 Shen Chia-pen became a department director in the Board of Punishments, in accordance with a regulation that permitted sons of high officials to serve in the government. His formal career in the field of law began at this time. In 1865 Shen received the chti-jen degree, and for the next two decades he worked in minor offices of the Board of Punishments. He became known for his ability to draft opinions for difficult cases, and he was promoted to more important sections of the board soon after 1883, when he obtained the chin-shih degree. From 1883 to 1893 he is said to have spent "not one day without working at making compilations and editing books on law." Shen Chia-pen was appointed prefect of Tientsin in 1893. On first taking office, he was lenient in his application of the law, but he later became more severe and once ordered four leaders of a riot beheaded "so that no one would dare to violate the law again." In 1897 Shen was appointed prefect of Paoting, where he gained experience in dealing with foreigners. One of the problems he faced was conflict between the local population and Christian missionaries. A group of Chinese soldiers had destroyed a foreign church outside the city walls, and it was Shen's responsibility to make a settlement. In negotiating he insisted on following the land records of the district and thus prevented the missionaries from taking land belonging to the prefectural yamen as a new site for their church. In later years, Shen often commented on the danger to China of the "religious cases," stressing that the situation had worsened largely because most Chinese officials knew nothing about the law and therefore could not handle conflicts with foreigners. At the turn of the century, as a consequence of the earlier dispute, Shen Chia-pen was falsely accused by some missionaries of supporting the Boxer Uprising. When the Allied armies occupied Paoting in 1900, Shen was arrested and questioned. After being released for lack of proof, he joined the imperial court at Sian, for the turmoil in China prevented him from taking office as provincial judge of Shansi, the position to which he had just been appointed. In Sian, he was given the post of junior vice president of the Board of Punishments and the honorific title of kuang-lu ssu-ch'ing. He returned to Peking with the imperial court in 1902.
In January 1901 the Empress Dowager Tz'u-hsi had issued an edict asking her high officials to suggest reforms. In response, Liu K'un-i ECCP. I, 523-24) and Chang Chih-tung (ECCP, I, 27-32), who then controlled central China, presented four memorials to the empress dowager in 1 90 1 . Liu and Chang, though loyal to the empress dowager, probably were responsible for keeping the Boxer Uprising from spreading southward. Thus, they were in an especially strong position with regard to the imperial court on the eve of the defeat of the Boxers. Two of the memorials pertained to law. discussing abuses of present laws and suggesting the need for new regulations to cover the legal complexities of dealing with foreign powers and their nationals. In January 1902, after the empress dowager returned to Peking, she asked Yuan Shih-k'ai (q.v.), Liu K/un-i, and Chang Chih-tung to recommend officials who would assume responsibility for revising the law. At their suggestion, Shen Chia-pen and Wu T! ing-fang (q.v.) were appointed. Because Wu then held a number of posts, each of which demanded time and attention, Shen became almost solely responsible for the entire law reform program.
Administrative difficulties caused a delay of two years in organizing the law reform program. During this time, China signed new commercial treaties with Great Britain, the United States, and Japan in which these powers took official notice of the new interest in modernizing the law and agreed to relinquish their extraterritorial rights when the state of Chinese law warranted such action. Accordingly, after the fa-lü pien-tsuan-kuan [bureau for the compilation of the law] finally was opened in May 1904, the reformers worked rapidly in the hope of securing the abolition of extraterritoriality.
Before making any recommendations of their own, the members of the newly established bureau hired scholars who had studied abroad to translate foreign books on law and government, studied Western and Japanese law, and invited such Japanese legal experts as Okada Asataro and Matsuoka Yoshimasa to come to China as advisers to the bureau. Shen and Wu soon realized that they could not continue to look abroad for the necessary legal talent, and they obtained permission to establish a law school. The Fa-lü hsueh-t'ang, China's first modern law school, opened at Peking in 1906.
The Ch'ing code of law that was to be revised, the ta-Ctüng lü-li, consisted of two types of laws: the lu [fundamental laws], of which there were 436, most of which dated from the T'ang dynasty; and the li [supplementary provisions], of which there were about 1,800. The Ch'ing code was arranged in seven sections. The first section, entitled "ming-li" [general provisions], included rules about such things as the names of punishments, the ten heinous crimes, offenses by officials, mitigation of punishment, and pardon. The remaining six chapters, named for the six boards of government, contained specific laws governing the bureaucracy, family matters, taxation, rites, the army, criminal matters, and public works. The code included both criminal and civil law provisions, but no distinction was made between them. Confucianism provided the philosophic basis for the code. Loyalty and filial piety were emphasized, and crimes against the emperor and senior members of the family were considered more serious than other offenses.
Shen first proposed a series of changes in the Ch'ing code in April 1905. These, of all his suggestions, were the most favorably received and the easiest to implement. He called for the abolition of 344 supplementary provisions on the grounds that they were redundant. He wanted to discard laws inflicting corporal punishment in favor of fines or prison work; torture was to be eliminated from trial procedure except in capital cases where the offender refused to confess; also to be abolished were branding and the cruder forms of capital punishment. In addition, there was to be individual rather than collective responsibility in criminal matters. The reform program was successful in all of these areas, although some cases involving torture continued to be reported, and such punishments as banishment and wearing the cangue continued to be meted out. During the winter of 1 906 attempts were made to reorganize the entire Ch'ing administration according to the principle of separation of powers. The ta-li-yuan [supreme court] was formed at this time. It was based on the old ta-li-ssu [court of revision], but, unlike its predecessor, it was independent of the executive branch of the government. Shen Chia-pen was named president of the ta-li-yuan, and Chang Jen-fu succeeded him as vice minister of the ministry of justice, the former Board of Punishments. Within six months, however, the two men had switched positions. This shift apparently was motivated by the fear that Shen would become too powerful heading the independent ta-li-yuan. Another factor was the general confusion over separation of powers. After Chang became president of the ta-li-yuan, he proposed that the revision of the laws be undertaken jointly by the ministry of justice (executive branch) and the ta-li-yuan (judicial branch), using the fa-lü pien-tsuan-kuan (legislative branch) in an advisory capacity only. Shen responded to this suggestion by resigning from the fa-lü pien-tsuan-kuan. At the same time, the recently established cheng pien-ch'akuan [constitution committee] attacked Chang's proposal on the grounds that it violated the principle of separation of powers. This committee suggested that an independent organ be created to draft codes. This suggestion met with the emperor's approval, and Shen Chiapen and Yu Lien-san were appointed hsiu-ting fa-lü ta-ch'en [imperial commissioners for the revision of the laws]. At the same time, the hsiu-ting fa-lu-kuan [codification committee] was established. Shen, at last, had the authority and the independence to pursue his main concern, the modernization of Chinese law. In the spring of 1906 Shen Chia-pen submitted to the throne the first Chinese code of law governing procedure in criminal and civil cases, the hsing-shih min-shih su-sung-fa. This code was revolutionary in three respects: clear distinction was made between civil and criminal law; trial procedure was broadened to allow the parties to confront each other in cross-examination; the jury system was introduced as a way of counterbalancing the power of the magistrates. The code was misrepresented by its opponents as an attack on Confucian values, and the very radicalness of its proposals doomed it to failure.
Although Shen Chia-pen now had learned that it would be necessary to move slowly in changing the law, he submitted another proposed code to the throne in 1907. This code, called the hsin-hsing-lü [new criminal law] violated or ignored the traditional Confucian principles of law to an even greater extent than had the 1906 draft. Ethical considerations were separated from legal ones so that the severity of a crime was determined by the act itself, not by the person who committed it; offenses against morality were not included in the law at all, for education was felt to be the proper method of coping with them ; and acts which were not clearly stated to constitute a criminal offense were not punishable even if they resembled other acts which were stated to be criminal. For the first time, the judge was given the right to exercise his discretion in imposing sentence in both capital and noncapital cases. The law established maximum and minimum sentences for each offense, and the judge was to weigh the importance of such special considerations as the degree of relationship between criminal and victim in making his decision. The provisions of the code were comprehensive in nature, and the old Chinese notion of "one case, one rule" was abandoned. The proposed code was based almost entirely on the suggestions of Shen Chia-pen's chief criminal law adviser, the Japanese scholar Okada Asataro, who, in turn, had been influenced strongly by the German code of 1889. In adopting Japanese and German principles of law, Shen committed himself to the principle that all people, with the exception of the imperial family, are equal before the law. This commitment (evident not only in the new code but also in his memorial on the abolition of legal distinctions between Manchus and Chinese and in his essay on the abolition of slavery) irreconcilably separated him from the conservative Confucian officials who thought that distinctions based on status, age, and sex should remain at the heart of the Chinese legal system. The proposed code was submitted to the throne in two parts, the general provisions on 3 October 1907 and the specific provisions on 30 December of that year. The general provisions section was circulated among the high officials in the capital and in the provinces for their criticism. Led by Chang Chih-tung, then minister of education, and Lao Nai-hsuan (q.v.), a member of the cheng pien-ch'a-kuan, the bureaucracy uniformly denounced the code and even made personal attacks on its author. As a result, the hsiu-ting fa-lü-kuan was ordered to compile a code which hewed to the principles of Confucian morality. Under Shen's leadership, however, the committee balked, and only a few technical changes were made. The minister of justice, T'ing-chieh, countered by proposing five provisional articles which incorporated the main points made by the conservatives. Partly because of this gesture of opposition, in March 1908 Shen asked the emperor for permission to revise the ta-Ching lü-li without changing its basic characteristics. As a result, he came to write two quite distinct criminal codes, one an outgrowth of the Chinese legal tradition, the other, alien to it. The revision of the ta-Ch'ing lü-li proceeded smoothly. In October 1909 Shen submitted his hsien-hsing hsing-lü [criminal law in force] to the cheng pien-ch'a-kuan. After certain changes were made, the document now called the ho-ting hsien-hsing hsing-lü [revised criminal law in force] was approved without further delay. It was promulgated on 15 May 1910. The most important principle that was established by this code was the distinction between criminal and civil law. The memorial that accompanied the final version of the code clearly stated that all cases dealing with succession and inheritance, division of estate, marriage, land and tenements, and debts should be considered civil cases. This code remained in force until 1929, when the first special civil law code was promulgated. The revised code was a step closer to modernity than the old ta-Ch'ing lü-li. The system of punishments was changed; the number of fundamental laws and supplementary provisions was reduced; and the articles were rearranged and systematized. In the final analysis, however, the revised code continued the tradition of the ta-Ch'ing lü-li, since there was no attempt to deviate from accepted legal principles. Shen Chia-pen continued to be concerned about the lack of procedural law in China. In 1910 he submitted to the throne the ta-Ching hsing-shih su-sung-lü ts'ao-an, which set forth procedural law for criminal cases, and the ta-CWing min-shih su-sung-lü ts'ao-an, which set forth procedural law for civil cases. No mention was made of trial by jury, and certain provisions were intended as a compromise between Chinese and Western court practice. At the same time, these proposed codes were more modern in that they defined the proper sphere of procedural law much more sharply than the earlier attempt. Once again, Shen failed to win support for his views. Shen Chia-pen, disillusioned by the attacks made upon him and disappointed by the failure of his most cherished plans for law reform, resigned from all his government offices late in 1910. As the political situation became more and more acute, Shen's attention was diverted from the problems of law reform to those of dynastic survival. When Yuan Shih-k'ai, in a last attempt to halt the revolution, organized a cabinet at the end of 1911, he appointed Shen Chia-pen minister ofjustice. Again, Shen lacked the opportunity to make any changes in the legal structure. When the republic was established, Shen's proposals were enacted, but after Yuan Shih-k'ai became president, the supplementary provisions were again made part of the law, thus defeating Shen's attempts to create an entirely new criminal code for China. Shen Chia-pen, who had gone into retirement with the downfall of the Ch'ing dynasty in 1912, died at Peking on 27 April 1913. The dominant motif in Shen Chia-pen's career was his conviction that China should adopt a modern legal system. He hoped that the change could be made without rejecting the entire Chinese legal tradition, but by distinguishing between law and morality and by treating all people as equals under the law, he came into conflict with basic Confucian principles. Most of his efforts, therefore, were unacceptable to the vast majority of his fellow officials. Nevertheless, Shen made important contributions to Chinese jurisprudence. He humanized the system of punishments, brought about legal equality between Manchus and Chinese, and helped bring about the abolition of slavery. He formulated China's first modern codes in both criminal and procedural law, and thereby paved the way for the codification efforts of the National Government. He called attention to the importance of law and to the proper roles of judges and lawyers. Through his efforts, a law school was opened, countless foreign books on law were translated into Chinese, and old editions of Chinese law books were brought up to date and reissued. Shen also trained and inspired such younger jurists as Tung K'ang, Wang Hsi-chih, and Chang Tsung-hsiang.
The works of Shen Chia-pen were collected and published by his followers as Shen Chi-i hsien-sheng i-shu. His most important writings are the Li-tai hsing-fa k'ao [a historical study of Chinese criminal law] and Wen-ts'un [selected works—memorials, letters, criticisms and prefaces] .
Shen Chia-pen married twice. He had four sons, two of whom were adopted by his brothers. All of the sons became government officials, and one of them was educated in England. Shen also had two daughters, both of whom married officials.
