Whose injustice, which punishment? Reconceptualizing morality in the debate over the new criminal code of Great Qing, 1906-1911

Park, Woohui

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https://hdl.handle.net/2142/124458 Copy

Description

Title

Whose injustice, which punishment? Reconceptualizing morality in the debate over the new criminal code of Great Qing, 1906-1911

Author(s)

Park, Woohui

Issue Date

2024-05-03

Director of Research (if dissertation) or Advisor (if thesis)

Chow, Kai-Wing

Committee Member(s)

Wilson, Roderick Ike

Department of Study

E. Asian Languages & Cultures

Discipline

E Asian Languages & Cultures

Degree Granting Institution

University of Illinois at Urbana-Champaign

Degree Name

M.A.

Degree Level

Thesis

Keyword(s)

• Legal Debate
• Legal Reform in Qing
• Morality and Law

Abstract

The Draft of the New Criminal Code of Great Qing (Daqing Xin Xinglü Caoan 大清新刑律草案) in the early 1900s sparked a heated debate over how the criminal codes should be revised in alignment with social ethics. While existing research extensively examines the theoretical and practical significance of the debate, the predominant conceptualization of the rivals as the “faction of moral teachings” (lijiao pai 禮教派) and the “faction of legal principle” (fali pai 法理派) premised on binaries such as tradition—modernity and China—the West. The widely accepted stereotype of “the conflict between ritual and law” (lifazhizheng 禮法之爭) is no more than a simplistic account that regarded the “faction of legal principle” such as Shen Jiaben (沈家本, 1840-1913) as championing westernized and modern law whereas their critics were Confucian conservatives like Lao Naixuan (勞乃萱, 1843-1921) who upheld the feudal Confucian “feudal” morality (封建禮教 fengjian lijiao) with limited knowledge of legal principles and their functions. To challenge this false dichotomy between morality and law, this thesis conceptualizes these opposing factions as conventional reformists and critical reformers, underscoring the fact that both aimed to reform the criminal code and were equally concerned with conventional morality (禮教 lijiao) as a source of law. Furthermore, it explores a neglected theoretical aspect of the debate by focusing on the definition of criminality and the justice of punishment in proportion to the crime. Their divergent views on whether immoral acts, such as fornication and incest, should be considered unlawful acts constituting crimes influence their standpoints to the reform. This thesis argues that the debate did not involve clashes between Confucian moral teachings and modern Western law but rather reflected the divergent views on the conditions of criminalization of moral transgressions.

Graduation Semester

2024-05

Type of Resource

Thesis

Copyright and License Information

Copyright 2024 Woohui Park

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