从《法意》按语看严复的司法改革观

Yan Fu’s View of Judicial Reform from the Note of The Spirit of Laws

严复的西方法理学译著《法意》,系统全面地向中国介绍了西方法制,同时在译本中加入了许多按语,集中表达了自己对司法改革的看法。以中西司法对比的眼光,采用史料分析的方法,以《法意》的按语为中心,通过梳理严复视野下的清末司法改革,探究严复在充分考虑现实情况之下提出的循序渐进司法改良观念。尽管这种观念有些许违背时代潮流的意味,但实际上其背后隐藏的是实现司法近代化的最终目的。

In the tide of China’s modernization reform,China’s feudal judicial system faced the dilemma of having to change but lacking theoretical and practical basis.Although the new deal of the late Qing Dynasty carried out a more thorough judicial reform,it actually grafted only part of the Western judicial system on the feudal official system,which was not in line with the reality.Yan Fu paid attention to the reality of China and accordingly put forward the methods of judicial reform and recovery of extraterritorial jurisdiction.His translation of The Spirit of Laws introduced Western legal system to China systematically and comprehensively,and meanwhile,he added numerous notes in the translation to express his views on judicial reform.In this paper,the author explores Yan Fu’s idea of gradual judicial reform in full consideration of the reality from the perspective of comparison between China and the West by applying the method of historical data analysis,focusing on the notes of The Spirit of Laws and combining the judicial reform in the late Qing Dynasty under Yan Fu’s vision.Although this kind of concept is somewhat contrary to the trend of the times,it actually hides the ultimate goal of judicial modernization.