如何实践“中体西用”:张之洞与清末新刑律的修订

Mr. Zhang Zhidong's Practice of ‘Taking Chinese System as a Body and the Western One as Its Utility’ in Revising a New Criminal Law in the Late Qing Dynasty

张之洞以维持礼教为由反对日本法学家起草的新刑律草案,论者以之为囿于"中体西用"说的表现,往往有顽固保守之评。不过若仔细检视其事及其主张,不难发现张氏反对的内容其实相当有限,其主旨显然不是要全盘推翻草案,而是在效仿西法、收回法权的同时亦可维持守约式的礼教。然而庚子以后尊西趋新之风极盛,加上商约条文放大了收回法权的愿景,不但传媒舆论几乎一面倒地支持新刑律,就连朝廷对张氏的诉求也阳奉阴违,核订新刑律实际秉持"完全以世界为主"的宗旨。可见张说在清季最后几年逐渐丧失了实践的可能性,"中学不能为体"的时代已经来临。

Based on the ground for preserving Chinese traditional ethical norms (Lijiao), Mr. Zhang Zhidong opposed the draft of the New Criminal Law prepared by Japanese jurists. Considering it as an idea constrained by his thought of taking the Chinese system as a body and the western one as its utility (Zhongti Xiyong), critics usually dismissed him as being stubborn and conservative. A close examination of the whole case and his view is done in the paper to reveal that the extent of Mr. Zhang’s opposition was fairly limited. He did not intend to overturn the whole draft but to maintain the Chinese traditional ethical norms as a western contractual behavior while adopting the western law and recovering China’s consular jurisdiction at the same time. But the new trend of respecting western things had become exceedingly popular after 1900. In addition, relevant clauses of a series of commercial treaties around that time were signed with foreign countries in order to obtain a prospect of recovering consular jurisdiction. Not only did journalists overwhelmingly support the New Criminal Law, but even the Court of the Qing dynasty overtly agreed to it and covertly opposed Mr. Zhang’s proposal, and asserted that the New Criminal Law must uphold the principle that ‘entirely lays emphasis on the world’ instead of the tra- dition. It is evident that the possibility of putting Zhang’s idea (Zhongti Xiyong) into practice had steadily come to an end in the last years of the Qing dynasty. By then, a time arrived when Chinese learning could not be its principle any more.