Research On The Undercurrent Of Chinese Judicial Modernization

The general trend of established research on China’s judicial modernization in the field of academia is to move from macro-theory to meso-study,and from Western theory to Chinese practice.Chinese modernization requires scholars to re-examine China’s modernization course based on the Chinese position.In the sense of Chinese judicial modernization,established studies have noted the theoretical and practical significance of the historical,local,and fragmentary origins of judicial modernization for contemporary judicial modernization but have not made a comprehensive theoretical development and analysis.Based on the excavation and new interpretation of Qing judicial archival materials by academics,a trend and vein of Chinese judicial modernization will be revealed.All discussions on the Chinese judicial modernization are based on the understanding of this concept,and the discussion on the Qing or contemporary judicial modernization must first clarify the meaning of the concepts of "modernization","justice" and "China".The proliferation of modernization opens and establishes the multi-vein form of modernization as a historical process.Although modernization is singular in origin and orientation,it is plural in outcome.Modernity is an intrinsic dimension of the process of modernization,which is therefore European monolithic in origin,but like the process of modernization,manifests itself in a multiveined form in its outcome.The complex relationship between modernization and modernity is presented in two interpretations,namely,the "generative mode" view means that modernization created modernity and the "logic of meaning" view points out that under modernity spawns modernization.At the level of judicial modernization,Weber’s theoretical line of judicial modernization centered on rationalization,although pointing out the core indicators of judicial modernization,is still mainly a study based on the European position.Although American scholars’ research on judicial modernization is based on a critique of classical European theory,it is in a sense a spiritual reversion of the classical European theory of judicial modernization.Pluralistic modernization and pluralistic modernity call for a pluralistic modernization narrative to replace the original single-line modernization narrative.Re-observation of the historical Chinese judicial modernization experience must be based on the interpretation of the logic of the meaning of modernity in the process of China’s judicial modernization and the review of generative mode of the modernization,so as to generate new knowledge and understanding of the road of China’s judicial modernization in a comprehensive sense.This research must be carried out based on the " middle-range",that is to say,it must be combined with the observation of structure and the field,and the criterion of judgment are the pluralistic rationalities with formal rationality as the core.Based on the approach of the logic of the meaning of judicial modernization,the central criminal justice after the middle term of the Qing Dynasty showed the characteristics of de-administrative dependence different from the traditional view,the increasing requirements of judicial reform on the rationalization of bureaucratic system for decision-making contributed to the deepening of the independence of the judiciary based on the knowledge of a high degree of specialization,and the day-today operation of the central criminal justice in the Qing Dynasty based on the rationalization of the bureaucratic system increasingly showed a trend of "autonomy" based on the rationalized daily operation of the bureaucratic system.Although the judicial reforms of the mid-Qing Dynasty contributed to the development of the central criminal justice toward specialization and rationalization,and thus succeeded in realizing the resistance to the dominant administration in a certain sense,this form of justice,which possesses some modern judicial characteristics,is still incapable of fundamentally escaping from the "meta-field" of the imperial power,thus could not develop into a truly modern justice.Based on an examination of local justice in Taiwan Province during the late Qing Dynasty,we find a different pattern of judicial modernization from that of the central criminal justice in the Qing Dynasty.The "Tai’jie" litigation in Taiwan in the late Qing Dynasty shows that the modernized local trading habits made the rules of adjudication modernized in substance,forming a model of adjudication based on the modern formal rationality.The logic of Taiwan’s handling of the "Jiao’an(religious incident)" demonstrates that local magistrates in the late Qing Dynasty implemented the goal of substantive rationality based on the concept of substantive justice by adhering to the content of the treaty and the judicial procedures in a way that conformed to the requirements of modern formal rationality.The arrival of the era of the sovereign state made the local magistrates of the late Qing Dynasty promote the substantive construction of Chinese modern judicial sovereignty in practice in an unconscious way.The path of judicial modernization in Qing Dynasty has become historical relics,a path that in reality did not lead to a straight path of Chinese judicial modernization,but what is really important is not to confirm the conclusions of history,but to look back at history for the sake of the present,i.e.,to derive from the observation of Qing justice certain mirrors that are still valuable to the cause of judicial modernization in contemporary China.When we return to the judicial practice of the Qing Dynasty with the judgment that there was a trend of modernization,we will find that in the perspective of such an epochal turn,on the one hand,it was the magistrates who always played the role of driving Chinese justice towards modernization.At the level of central criminal justice,the important role of magistrates is manifested in the spontaneous specialization and rationalization of professional magistrates under the efficiency-oriented judicial reform;at the level of local justice,the role of magistrates is manifested in the role of non-specialized judicial officials in the face of modernization,based on the premise of not refusing to adjudicate and adopting the rule-making mode of both formal and substantive rationality in practice.On the other hand,the tradition of governance,which is centered on "Li(Etiquette)" emphasizes trade-offs and pushes for effective governance through an ethic of responsibility,also plays an important role in the proactive pursuit of optimal handling of cases by magistrates.Bureaucracy and governance traditions drove the "endogenous" and "responsive" paths of judicial modernization separately,and together they constituted the core endogenous impetus that drove the evolution of Qing justice into modernization.Based on the historical observation of the interaction between structure and habitus,under the continuous interaction between the strong emperor and the weak magistrates,the evolution of central criminal justice in the Qing Dynasty presented a non-comprehensive rationalization trend under the suppression of imperial power,which can be regarded as an atypical judicial modernization mode following the "logic of meaning" of modernization.Modernization.At the level of local justice in the late Qing Dynasty,we observe a second mode of judicial modernization in the Qing Dynasty,that is,a mode of judicial modernization based on the local knowledge and local judicial practices of prior modernization,which can be understood as a "generative mode" of modernization.The path of judicial modernization based on the transformation of the image and function of the state,based on the irrationalization of the state’s will and the non-modernization of the state’s finances,and on the expansion of the rationalization within the bureaucracy is impossible to achieve.As for the evolutionary model of judicial modernization driven by local knowledge and local judicial practice,although the tilting and even imbalance of state power to the local level represented by financial power in the late Qing weakened and eventually destroyed the authoritarian imperial power,in the sense of the modernization of the state system during the Qing Dynasty,the weakening of the central power not only did not help to mobilize new social resources for the reconstruction of the state system but also declared that,in the fundamental sense,it is impossible to promote the reform of judicial modernization from the bottom up in the state system of Qing Dynasty.The endogenous dynamics,evolutionary patterns,and external constraints summarized in the failed Qing judicial modernization trend can still serve as important mirrors for contemporary Chinese judicial modernization,so that the Qing judicial modernization trend can become a historical undercurrent of Chinese judicial modernization.