Approaching Law and Exhausting its (Social) Principles: Jurisprudence as Social Science in Early 20th Century China

Abstract

The last decade of the Qing dynasty (1644-1911) and Republican period (1912-1949) saw intensive efforts to revise the Qing Code, promulgate modern legal codes based on Japanese and German law, establish a modern system of courts, and develop a professional corps of lawyers and jurists (Huang 2001; Xu 2001; Yeung 2003; Young 2004; Neighbors 2004). These institutional reforms were implemented as part of the drive to have extraterritoriality rescinded and safeguard the sovereignty of the Qing dynasty and then Republic of China. The reforms were accompanied by new categories within civil and criminal law (including a new conceptual distinction between the two), new conceptions of legal knowledge and expertise, and rich discussions over sources of law which took place within the legal realm as well as the readership of Republican newspapers and journals (Young 2004; Lean 2007). If, as Roger Berkowitz (2005, 1) writes in his study of scientific codification in continental Europe, “in a legal system, there must be some way that the law comes to be known,” how did ways of knowing law change during this period of legal reform and broader intellectual change? Through a survey of jurisprudence textbooks and other legal publications, this paper argues that writers in early 20th-century China came to define jurisprudence (faxue, falixue) in positivistic terms, ultimately using new conceptions of science (kexue) and social science (shehui kexue) to identify its place within a new ordering of modern knowledge.