晚清法律改革动因再探——以张之洞与领事裁判权问题的关系为视角

Revisiting the Motivation for Legal Reform in the Late Qing: Zhang Zhidong and Consular Jurisdiction

长期以来 ,法律史学界把中英《马凯条约》第十二款关于英国有条件放弃治外法权的承诺视为晚清法律改革的主因。而历史的真相是 ,1 90 2年商约谈判时张之洞主导制定了这一条款 ,首倡“修律以收回领事裁判权”说 ,其目的在于推进国内向西方学习的进程 ;1 90 7年后张之洞又否定了“修律以收回领事裁判权”说 ,其目的是为了反对沈家本在他看来过于“西化”的法律改革模式 ,以维护其“中体西用”的法律改革思路。这一过程表明 ,领事裁判权问题始终只是晚清主持改革者推进法律变革的手段。事实上 ,晚清法律改革作为清末新政的一部分 ,也是服从和服务于新政这一整体政治局势的 ,它本身并没有自己额外的起因和目的。

For a long time, it has been widely believed that the main cause of legal reform in the late Qing was the conditional promise made by the Renewed Treaty of Commerce and Navigation between Britain and China, which prescribed the abandonment consular jurisdiction. In fact, it was Zhang Zhidong who brought up the abandonment of consular jurisdiction when he was negotiating with Britain in 1902. Zhang initiated the principle of “legal reform to regain consular jurisdiction' in order to advance Western learning in China. But, soon afterwards, Zhang repudiated the principle in order to safeguard his version of legal reform and fight against Shen Jiaben's legal reform. We can conclude that regaining consular jurisdiction was only one part of late Qing Reform legal reform not the aim .As a part of overall state reform, legal reform was subordinate to the overall reform, it did not have a rationale of its own.