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Under the cultural background of western learning spreading to the east in the late Qing Dynasty, the upsurge of studying in Japan was actually the product of the fierce collision between Chinese and western cultures in modern times. Because "Japan has been seeking knowledge from countries all over the world for 30 years since its reform, and has translated thousands of useful books, especially political science, financial management (called economics in Japan), knowledge science (called philosophy in Japan) and ethnology (called sociology in Japan). All of them have opened the urgent task of "strengthening the country with people's wisdom." Therefore, the academic masterpieces of European and American countries, regardless of politics, economy, education and so on. , with Japanese translation. China students who failed to go to Japan were placed in the modern Japanese social environment and had direct contact with western civilization. Encouraged by new knowledge and threatened by internal and external troubles, they tried to reform, and then eagerly studied and translated western social science masterpieces with Japanese as a tool and intermediary, thus opening up the source of western learning. Although China sent overseas students to Japan at public expense as late as 1896, "their contribution to learning and introducing western legal culture is far beyond the previous generations of overseas students".
Japanese freer environment and more law schools provide convenience for China students to study law and politics. According to the statistics of the First Report of the Overseas Students' Guild in Qing Dynasty (1902), more than half of the students studied law, politics and gendarmerie. In order to introduce the New Deal to the Chinese people, they organized many influential translation organizations, mainly including translation book compilation society, textbook translation compilation society, translation agency, Hunan Province, Universal Encyclopedia, Fujian Society and so on. One of the most famous is the translation and compilation society. The agency publishes a magazine "Compilation of Translations", which widely translates famous works from eastern and western countries, with emphasis on politics and law. Translation is often published in stages, and then, a single book is published. After it was published in Tokyo, it was very popular in China and was the "originator of study abroad magazine". Liang Qichao praised "the compilation of translated books, which still exists today, can introduce civilized ideas, is the glory of the country and is easy to recite" in his 100 volumes of congratulatory messages and on the responsibility and experience of the newspaper. (4) Feng Ziyou also commented in the Overview of Revolutionary Books and Newspapers at Home and Abroad before 1911: "The monthly translation compilation published by overseas students was the first to publicize the civil rights thoughts of Chinese youth and achieved remarkable results." ⑤ Another influential translation agency, Hunan Compilation Society, published a monthly magazine Translation and Compilation of Travel in 1903, which not only translated books, but also translated various miscellaneous works, papers, essays and news. Compared with the purely academic translation and editing society, Hunan translation and editing society has a slight political tendency.
At the same time, magazines based on provinces have also appeared one after another. Among them, Hubei Student Circle (later renamed Han Sheng, 1903), Zhejiang Chao (1903), Jiangsu (1903) and Henan (1907) are famous. As for these publications sponsored by students studying in Japan, Gu Jieguang said in the Classic Introduction to Translating Books (1904): "There are many translated books in the academic circle of studying abroad in East China, but many of them are attached, such as Compilation of Translated Books, Compilation of Studying Abroad, Zhejiang Tide and Jiangsu. ⑥ These publications either set up special columns on "Law and Politics" or often published translated articles introducing western bourgeois law and jurisprudence, and spread them to domestic intellectual circles. Taking Shanghai as an example, Feng Ziyou said that the two years from 190 1 to 1902 "were the most popular times for new books and newspapers in Shanghai. At that time, there was a strong trend of translation and introduction in oriental academic circles, and Zuo Xin Society, Guang Zhi Bookstore, Commercial Press, Xinmin Congbao Branch, Today's Mirror Bookstore, Sinology Society, East China Bookstore, etc. all competed for innovation. Therefore, the "European and Western Giant Theory" took this opportunity to "cross the ocean and instill the consciousness of our compatriots". Although the contents of these translations are very complicated, and some of the theories advocated are outdated and some are reactionary in the west, these ideological theories are still relatively new and advanced and sharp ideological weapons for a feudal empire involved in the world political vortex, especially for the western bourgeois social and political law and democratic thoughts.
While translating a large number of books on French western culture, China students began to examine Japanese traditional French culture, accept French western culture, and wrote many articles and books introducing French western culture according to their own understanding, thus promoting the spread of French western culture in China. Take Xinmin Congbao as an example. 1902, the magazine published more than 340 articles and materials, including 180 articles commenting on western bourgeois politics, law and culture, accounting for more than half of the total. 1903, the compilation of translated works, which mainly compiled European and American laws and politics, also changed from translation to writing, and vigorously publicized the bourgeois idea of rule of law. At this time, overseas students in China constantly absorbed Japanese legal and political culture from the west, digested and reformed it to suit Japan's national conditions, and then publicized it to the domestic market, which played an enlightening role. An article in the Annual Report of Students Studying in the United States, run by China International Students Office, said: "China seems to wake up, but it seems that he is about to start over as soon as he wakes up? The old one? I haven't decided yet. Because of Japanese students' books and newspapers, Japanese students' insults, and Japanese students' electric disputes, the people all over the country have awakened. Enlightened people are awakened by light; Stubborn people wake up from scolding; People who don't make progress will make progress because of their courage; Those who retreat are pushed forward. In this era of awakening, Japanese study abroad groups have greatly influenced China. " Pet-name ruby It is precisely because of the propaganda of new ideas of overseas students that fresh blood has been injected into the conservative political and legal development, which has brought vitality and vigor to the emerging bourgeoisie and promoted the awakening and political progress of China people. Therefore, Liang Qichao and others also highly praised the role of students studying in Japan in ideological enlightenment, and further pointed out: "If you want to ask which one is the most promising and which one can afford China in the future, you must study in Japan." 10
The development of history also fully confirmed Liang Qichao's prediction. With the Soviet Report published in 1903 and the rise of the anti-Russian movement as the boundary, the journals of students studying in Japan gradually got rid of the influence and control of the bourgeois reformists, and turned to openly publicize the bourgeois democratic revolutionary ideas and advocated the establishment of a democratic republic. According to Zou Lu's China League, at that time (1903), students studying in Japan from various provinces organized student unions, and "there was an organ newspaper in the meeting that was ashamed of not talking about revolution" 1 1. In addition, students studying in Japan have written many pamphlets to publicize bourgeois democratic revolutionary ideas. Among these pamphlets full of democratic fighting breath, Zou Rong's Revolutionary Army is the most influential one. Zou Rong's revolutionary army theory comes from the important works of the western bourgeoisie during the Enlightenment, such as Rousseau's On Civil Contract, Montesquieu's The Essence of All Laws, Maitreya John's The Principle of Freedom, The History of the French Revolution, The Theory of American Independence and so on. In Zou Rong's view, these works are "the elixir of resurrection and the treasure of rejuvenation". In the book "Revolutionary Army", Zou Rong used a whole chapter to announce to people that after the revolution, it is still necessary to take "American revolutionary independence" and establish a bourgeois democratic republic. After the publication of Revolutionary Army 1903 in May, it sold more than ten thousand copies of 1 in the late Qing Dynasty in various names. It "spread like wildfire and flew away from the sea", and it "was born, which made me brave; Courage is three inches to shout to compatriots and save our country. " 12. It greatly inspired people's revolutionary enthusiasm and sounded the horn of the times.
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The constitutionalism and revision of laws in the late Qing Dynasty is the premise of the development of new legal education. Due to the need for a large number of legal and political talents in the late Qing Dynasty, legal education flourished. Before the Sino-Japanese War of 1894-1895, the Qing court mainly studied the British and American legal education model. After the Sino-Japanese War of 1894-1895, it became fashionable to learn from Japan, and Japanese law became the mainstream of China's legal circles.
The upsurge of studying in Japan in the late Qing Dynasty was to meet the needs of the times. In the view of the rulers of the late Qing Dynasty who took respecting the monarch and patriotism as their national policy, it was more in line with the class interests of the Qing Dynasty to send overseas students to study in Japan. In this regard, Yang Shu, Minister of Qing Dynasty in Japan, made it clear: "The United States, France, the United States and other countries take democracy and democracy as their political systems, and China must never follow suit. However, the foundation of Japan's founding abides by China's sage way, and because it is forced by the great powers, it can't survive unless it is reformed, so it is determined to establish a constitution to respect the monarch and consolidate the people's hearts. Although China's constitutional government adopts the laws of Britain, Germany and other countries, it still abides by the sage's way, and the country does not shake its advantages and disadvantages. It covers the laws changed by Japan, which is very classic and conforms to the example, that is, China's public opinion is also the most exemplary. " 13, that is, the constitutionalism and revision of laws in the late Qing Dynasty should modernize the political system and legal system through improved methods without touching the feudal dynasty and regime. The legal education nurtured by this specific historical environment naturally has a strong political color. As a result, China began to send European and American students to Japan.
In the eyes of Chinese people in the late Qing Dynasty, Japan was a successful example of becoming rich and strong by learning from the West. Many things are digested, transformed and mediated by Japan, and are more easily absorbed and utilized by China. Zhang Zhidong clearly pointed out: "Western books are very complicated, and westerners have abridged and changed them as appropriate. The situation and customs in the Middle East are similar, easy to imitate and get twice the result with half the effort. " 14 in all these cases, it is believed that to obtain beneficial and harmless western learning, you can take a shortcut and take it directly from the east. As early as 1896, the Qing government sent 13 international students to Japan, among which Tang Baodai, a student studying formal courses of law and politics, appeared. From 65438 to 0898, after the Qing government formally established the policy of studying in Japan, it sent overseas students to Japan to study law and politics. Since then, provincial governors have also sent students to Japan, and official and private students have flooded into Japan. Describing the influx of Japanese students into China, Qing Liu Du Heng, a contemporary, said: "Although schools are to be set up to replace the imperial examinations in the past, the gateway is narrow and the path is dangerous, so it is difficult to climb. Students often cannot enter the door and stand in the wind and rain; In addition, how to leap into the dragon gate, where to seek glory, and how to talk about the strategy of saving the country? So, learn to make an appointment with each other, say' turn right', say goodbye to domestic schools in unison, buy a boat and go east, not far away, Tianjin in the north and Shanghai in the south, just like the tide. " 15 Japanese schools for international students in China have mushroomed. In the army, there are private military schools, private law and political universities, and Hongwen College, which provides general counseling and normal education. In addition, the East Asian Literature Association's East Asian Literature Institute and private Waseda University also have facilities specifically for China students. 16 Among them, Hosei University offered intensive courses on law and politics for China students in 1904, and by 1908, the number of graduates of intensive courses reached 1070, as many as 17. According to statistics, from 1905 to 1908, about 1 145 law students went to Japan at public expense. It can be seen that most of the graduates who studied law and politics in Japan in the late Qing Dynasty were quick. Although the practical value orientation of studying abroad in the late Qing Dynasty made the starting point of studying abroad in China's modern law lower, the role of students studying in Japan in the new education in the late Qing Dynasty can not be ignored.
At the end of the Qing Dynasty, under the explicit promotion of the government, the national legal and political education developed rapidly, and public and private legislative and political schools in various provinces blossomed everywhere. During this period, legal education suddenly flourished. Although it has its historical inevitability and positive significance, the excessive development of law schools has also caused a serious shortage of teachers and teaching materials, and it has shown a trend of flooding.
Looking at the development of legal education in the late Qing Dynasty, although the political school in the late Qing Dynasty was in full swing, the conditions for running a school were very limited. Due to the shortage of legal talents, the first few universities had to rely on foreign teachers, especially Japanese teachers. Later, a large number of law students studying in Japan quickly returned to China, which just met the needs of the great development of law education. As the earliest group in China who knew about modern law, they were of course joined the ranks of law teachers. The schools of law and politics established in local provinces are mainly funded by students studying in Japan, and the influence of law and politics students studying in Japan on Japanese law education began at that time.
The blind development of legal education in the late Qing Dynasty violated the law of educational development. Due to the lack of support and guidance of legal research results, there is a serious shortage of legal teaching materials. For this reason, the students studying in the crash course of law and politics in Japan translated the works of the famous Japanese jurist Mei Senjiro into Chinese, which became the teaching materials of the school of law and politics that rose in the late Qing Dynasty, and even their notes during their stay in Japan were entitled to be used as teaching materials. Although it solved the urgent needs of law students in the late Qing Dynasty and promoted the cultivation of new legal talents, its teaching quality was obviously not guaranteed. In summing up the experience and lessons of legal education since the late Qing Dynasty, Mr. Yang Zhaolong said: "At present, many schools of law pay insufficient attention to theoretical law, such as jurisprudence, philosophy of law, legal methodology and legislative principles. And only a few schools are included in the curriculum, and at the same time, they attach equal importance to various legal systems with other jurisprudence, only knowing what it is, not knowing why it is ... ignoring the legal theory as the whole legal science. " 19 Tracing back to the source, the trend of attaching importance to practicality and neglecting theory in legal education in the early Republic of China is not unrelated to the mistakes caused by blindness and practicality in legal education in the late Qing Dynasty.
The practicality and blindness of legal education in the late Qing Dynasty led to the low starting point of modern legal education in China, which restricted the further development of subsequent legal education in China. The reason is closely related to the influence of law and politics students studying in Japan returning to China. As the first teachers of modern legal education in China, they brought Japanese legal culture. At the same time, because most of them learn quickly and their academic foundation is not solid, their achievements in teaching law naturally have utilitarian factors, which has brought a rapid development trend to China. Therefore, it is inevitable that the new school of law and politics in the late Qing Dynasty was not influenced by this utilitarian legal education thought. However, the rapid expansion of the training scale of legal and political talents in the late Qing Dynasty led to the abnormal development of legal education in the whole education, which led to the failure of legal education aimed at "rectifying the current situation and cultivating generalists" in several early universities. At that time, the students acquired the basic knowledge of law at most 20. Zhu Jiahua, Minister of Education of Nanjing National Government, summed up the situation of law education in the first 50 years in the article "Law Education (1948)", and commented that "the domestic school of law and politics started at the right time, with low enrollment rate and lack of teachers. Of course, they can't talk about law, so although there are many people studying law, there are not many useful talents. "
Legal education in the late Qing Dynasty was born in change and operated in turmoil. Driven by the upsurge of studying in Japan, Japan's legal education mode became the mainstream mode of legal education in the late Qing Dynasty and even in the national government. The field of legal education was almost monopolized by students studying in Japan, and Japan's legal achievements have lagged behind Europe and America, especially legal philosophy. In addition, the quick success and overheated development of legal education in the late Qing dynasty made legal education in the late Qing dynasty embark on a road that did not belong to itself from the beginning.
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At the end of the Qing Dynasty, students studying in Japan set foot on the land of Japan with successful reform and strong country, and came into contact with a brand-new political environment. Naturally, they compared it with China's decadent political rule, and were deeply influenced by Japan's advanced legal culture, and then they had a strong desire to reform Japan's traditional legal system. On the stage of legal modernization in the late Qing Dynasty, students studying in Japan played an important role, and some famous politicians and legal talents emerged. In a sense, their actions influenced the basic trend of legal modernization in the late Qing Dynasty.
Under the situation of domestic troubles and foreign invasion in the late Qing Dynasty, many students studying in Japan went to study in Japan with the desire of patriotism and saving the country. They shouted loudly: "Today, people studying abroad should be encouraged, because they are neither expensive nor cheap, neither rich nor poor, neither long nor small." Studying abroad to save the country, this ideological trend of studying abroad to save the country promoted the traditional political, legal and social changes in China and laid a social foundation for the modernization of the legal system in the late Qing Dynasty. Regarding the political and legal activities of students studying in Japan and their influence, Huang Fuqing commented that "the success of the revolutionary movement in the late Qing Dynasty was mainly due to the promotion and efforts of revolutionaries and constitutionalists. They once aroused the awakening of young intellectuals throughout the country, participated in activities, overthrew the monarchy and established democracy." In this process, the contribution of students studying in Japan is particularly great. Because they provided ideal political ideas, developed organizations and spread ideas, the trickle from overseas merged into a torrent at home. The revolutionary and constitutional views of students studying in Japan are mainly exogenous to the invasion and resentful autocratic rule of foreign powers and are baptized by modern education. "This evaluation is realistic. Liu Housheng, a contemporary, also said: "In Xuantongyuan, provincial advisory boards were established one after another, and most of the elected members were students who advocated studying in Japan and returning to China. Therefore, domestic intellectuals, if in education or business, are well-versed and have great potential. "It is precisely because of the participation of students studying in Japan that the domestic constitutional movement and constitutional trend of thought continue to develop in depth.
At the end of Qing Dynasty, China began to go to the world, and the flood of democracy and legal system was unstoppable. The current situation also forced the Qing rulers to consider how to transplant western democracy and legal system. Among the students studying in Japan, the majors of law and law students studying in Japan involve the basic aspects of national politics and social rule of law, so law and law students studying in Japan naturally become the team they must rely on. At the same time, under the baptism of the trend of the times, many foreign students have a strong sense of responsibility and personal ambitions, claiming to be "representatives of all the people abroad" and "teachers of all the people at home". Both reformists and revolutionaries have high hopes for them and regard them as "future masters of China". They also want to use the politics and rights of the Qing court to transform the reality, and they have a strong desire to participate in politics, so the combination of the two has a certain realistic possibility.
After the imperial edict of the Qing government "imitating constitutionalism" was issued, people's political enthusiasm was greatly stimulated. With the active participation of students studying in Japan, constitutional organizations at home and abroad came into being. 190665438+On February 9th, Shanghai established the Constitutional Society for the first time, edited and published the Constitutional Monthly, publicized the constitutional theory and introduced foreign constitutionalism. /kloc-in June of 0/6, the Preparatory Constitutional Association was established in Shanghai. It edited and published the biannual Preparatory Constitutional Association Newspaper, set up a legal and political workshop, compiled the Company Law and General Principles of Commercial Law, and promoted local autonomy. Although the Preparatory Constitutional Association was founded with less than 50 members, it has grown to 345 in 1908, and has developed into the most influential constitutional group in China, among which the most active members are a group of young people who have just returned from studying in Japan. Tokyo, Japan has the largest number of foreign constitutional groups. 1June, 907, Yang Du and others who advocated revolution to constitutionalism set up a constitutional seminar. 1908 1, Yang Du renamed the constitutional seminar the Constitutional Association. The Constitutional Assembly and the Constitutional Association take China New Newspaper and Datong Newspaper as public opinion positions, vigorously publicize constitutionalism, reflect its social activities and political demands, and strive to expand social and political influence.
The imperial edict issued by the Qing government directly triggered the rise of constitutional groups, and the establishment of constitutional groups in succession, in turn, prompted the Qing court to speed up constitutionalism. 1on July 8, 907, the Qing government issued an imperial edict, demanding that a constitutional plan be drawn up from top to bottom. The imperial edict said, "Anyone who has practical knowledge and is therefore ready for the party to carry out orders should prepare a document to smell." 28. Since the winter of 1907, a nationwide petition movement for parliament has risen rapidly. The Constitutional Convention and the Constitutional Convention took the lead in opening this prelude, and Yang Du was the founder of the theory of congressional petition. 1907 1 month, Yang Du thought in China New Newspaper that "the constitutionalism can't depend on the government, but only on our people", and the key to implementing constitutionalism is that the people get up and fight for the early founding of the country. At the same time, he wrote to Liang Qichao, asking him to publicize the establishment of People's Republic of China (PRC) in The Times and other newspapers. Liang Qichao deeply agreed with this, and replied that "it is a good policy to advocate the founding of the country, be simple and straightforward, restrain the national psychology in one way, and get the effect of hitting the nail on the head." Around this time, China New Newspaper, Datong Daily, Political Review, The Times, Ta Kung Pao and the Preparatory Constitutional Association published articles calling for and commenting on the establishment of the National Assembly. They clearly pointed out: "China's anticlimactic reform last year, the separation of powers system has not been implemented, unchanged or abolished. If there is still a day to rectify internal governance in order to strengthen ourselves in the future, there will be no one who can rectify internal governance without adopting the separation of powers. " 3 1 Requires the establishment of a bourgeois political system in which the legislative, judicial and administrative powers are separated, that is, the parliamentary system is implemented, the cabinet is established and the judiciary is independent. Faced with this situation, the Qing government had to issue an imperial edict on August 27th, 1908. On the one hand, it announced that it would prepare for constitutionalism year by year in nine years, and on the other hand, it issued a warning: "If there are lawless people who cling to the name of assembly, and finally stir up trouble or make trouble rashly, the court can only enforce the law and punish them, and must not let them disturb public order." Constitutionalists are naturally dissatisfied with this, but because the Qing court recently promulgated the statutes of provincial consultative councils, the statutes of election of members of consultative councils, the essentials of government laws and the compilation of annual lists, it is stipulated that provincial consultative councils should be established in 1909 and held in 1920, after all, constitutionalism is not far away. It can be said that the constitutional movement in which students studying in Japan actively participated has achieved certain stage results. However, as reformists, some students studying in Japan who were influenced by western learning ignored the most essential and profound criticism and choice of western legal culture in the process of promoting the modernization of legal system in the late Qing Dynasty. "They are only keen on the propaganda of the actual system, but ignore the cultivation of concepts directly related to human rights, equality and constitutionalism." 33
The influence of Japanese legal culture on the modernization of China's legal system in the late Qing Dynasty was caused by the complicated historical situation and background at that time. On the one hand, the Qing court was forced by the situation of internal troubles and foreign invasion, and was willing to follow Japan's example to revitalize the country quickly, with a strong utilitarian color. On the other hand, in order to be nice to China, Japan hopes to export legal culture by training overseas students, which is even more ambitious. After the Sino-Japanese War of 1894-1895, there was an upsurge of studying China in the ruling and opposition circles, and seminars or other organizations were set up in succession to study and investigate the facts of China. On the surface, they euphemistically call it "goodwill and support" to save the eastern ocean, but in fact they have ulterior motives ... Japanese officials and gentry have come to China to lobby local authorities to send students to study in Japan to cultivate new talents. "34" contributed to the introduction of Japanese legal culture into China.
In short, the upsurge of studying in Japan in the late Qing Dynasty was not accidental. It has extremely complicated social reasons and is the result of the interaction of many factors. Its mainstream is to seek new knowledge and explore ways to revitalize the national movement. Although it was necessary for the Qing government to send a large number of overseas students to China to study law and politics, they quickly became the main force of legislation, justice and legal education under the special political environment of the New Deal in the late Qing Dynasty, leaving a deep Japanese imprint on the history of's legal modernization.