法学留学生与近代上海（清末-1937年）

【作者】 袁哲；

【导师】 戴鞍钢；

【作者基本信息】 复旦大学 ， 中国近现代史， 2011， 博士

【摘要】 本文以生活在近代上海的归国法学留学生群体为研究对象,试图呈现近代上海城市社会生活变迁的不同面向,进而说明在这个过程中,法学留学生是怎样影响近代上海城市社会生活变迁的。上海城区是近代中国近代化程度最高的城市,频繁的商贸活动也使得上海的法律制度、教育环境发展较为成熟,不少法学留学生因此汇聚在上海,并积极推进上海城市社会生活的变迁。深入研究法学留学生与近代上海这一课题,有助于认识城市社会生活变迁过程中,城市内群体关系的演变以及民众生活精神面向的转变,有助于对传承传统文化、吸收外来文化的思考提供借鉴,对了解近代上海乃至近代中国的城市社会变迁有重要的意义。封建时代的中国,整个社会的调控机制重公权、轻私权；重人治、轻法治。上海作为传统中国的一部分,也缺乏宪政、共和、法治、个人权利、司法独立和律师制度等因素。清末民初,法学留学生学成回国聚集在上海,通过翻译出版欧美及日本法学书籍、创办法学类报刊杂志、引入律师制度等活动,向社会传播西方法学知识。近代法学知识、法律观念从无到有这一传播过程,也是近代上海城市社会生活变迁的一个组成部分。中国古代没有近代意义上的法律教育,中国传统法律教育是国家默许的前提下,在民间展开的。上海开埠初期,仍延续在“四书五经”之外辅助性传授的传统法律教育模式。民初,民国教育部召集东西留学生拟定新学制。随即上海的法学留学生开始创办新式法律教育,并充当了新式法律教育的主要力量,上海也成为近代中国新式法律教育的重镇。1920年至1939年,上海有6所专门法学类独立学院,6所综合性大学设有法律系(院)。法学留学生在教学中逐步发展出独立的法学研究体系,并培养了一个具有现代社会意识的新知识群体,汇聚成为中国法律近代转型的内源性动力。辛亥革命后,在法学留学生的努力下,律师制度确立并在上海得以顺利运行,上海也形成了律师群体。律师群体通过各类案件的审理、非诉讼法律服务和法律援助,深深影响上海华人社会的法律观念。从社会构成角度而言,律师群体与其他新兴职业群体共同构成新的社会阶层,打破了士农工商的传统社会结构。律师群体中的法学留学生,因其社会身份和可观收入而得到社会民众的普遍钦慕。律师群体中的法学留学生,较早的组建了上海律师公会。得益于上海的社会经济环境,上海律师公会成为当时中国规模最大,影响力最广的律师公会。以法学留学生为主的上海律师公会的领导层,尝试行业自治的管理模式,并积极发挥社会团体的社会职能,协调国家与社会的关系。近代上海这种社会团体与国家政府互动管理社会的模式,反映了上海城市社会运作模式的变迁。概言之,在教育界,法学留学生开办发展新式法学教育,培养新兴职业群体；在律师界,法学留学生树立了律师良好的社会形象,传播了近代诉讼观念,通过律师公会尝试国家与社会的互动协作；在法学研究领域,法学留学生逐渐形成独立的法学研究体系,并提出复兴中华法系的研究思路,表达了将中外法律文化交流纳入对等、互补、会通阶段的意愿。这一系列活动,都可以从不同面向体现上海城市社会生活的变迁。更多还原

【Abstract】 This paper takes the returned students who studied in Law and lived in modern Shanghai as the study object. It tries to show different aspects of social life’s changes in modern Shanghai, and then to explain how law students affected these changes. In modern China, Shanghai city has the highest level of modernization. Frequent business activities here made the legal system and educational environment more mature, so many returned law students gathered in Shanghai, and promoted the changes in social life actively. Studying the relationship between returned law students and modern Shanghai in-depth is helpful for understanding the evolution of group relation and spiritual life during the process of social life’s changes. It also provided reference for the thoughts on inheriting traditional culture and absorbing exotic culture, and make sense for understanding the social transition in modern Shanghai, and even in modern China.During the feudal times of China, control mechanism was attached more importance to public power, less to private rights; more to rule of man, less to rule of law. At that time, Shanghai also lacked off constitutional government, republic, rule of law, individual rights, judicial independence, lawyer system and so on. Until late Qing Dynasty, when returned law students gathered in Shanghai, they spread western legal knowledge to the public through various ways. Such as translating foreign law books into Chinese, founding newspapers and magazines of law, introducing lawyer system and so on. This spreading process of modern law knowledge and legal concept is also an essential part of the social life’s changes in Modern Shanghai.In ancient China, legal education was different from modern times. Chinese traditional legal education was carried out by nongovernmental organization. In the early days of Shanghai opening port, people still continued to use traditional legal education mode. It means legal education was supplementary besides "The Four Books and The Five Classics". In the early time of the Republic of China, the Ministry of Education called abroad students from Japan and western countries together to study out new academic structure. Afterwards, law Students in Shanghai began to found new legal education system and served as the backbones in it. In the meantime, Shanghai became the center of modern legal education. From 1920 to 1939, Shanghai had founded 6 Law colleges and 6 universities with Law School. Gradually, returned law students developed an independent research system in their teaching, and brought up a new intellectual group with modern social consciousness. Then they became the endogenous motivation for Chinese Law’s Modern Transformation.After the Revolution of 1911, with the efforts of law students, lawyer system was established and run smoothly in Shanghai. Lawyers groups were also formed here. Lawyers groups influenced the legal concept of Chinese society deeply in Shanghai through trials of various cases, non-litigation legal services and legal aids. From the aspect of social construction, lawyers groups and other new emerging professional groups constituted a new stratum together, which broke the traditional social structure-scholar, farmer, artisan and merchant. Law students in the lawyers groups were admired by the public due to their social status and considerable income.Law students in the lawyers groups established Shanghai Bar Association earlier in China. Benefiting from Shanghai’s social and economic environment, Shanghai Bar Association became the largest and most influential one at that time in China. Law students, who were the main leadership of Shanghai Bar Association, tried the management model of industry self-management, and explored social functions of the social groups actively to coordinate the relationship between state and society. In modern Shanghai, this interaction managing model between social groups and state government reflected the changes of society operation in Shanghai city.In sum, in the education field, law students founded and developed new legal education, and brought up new emerging professional groups; in the lawyers circles, law students established a good social image of lawyers, spread the concept of the modern lawsuit, and tried interactive collaboration between social groups and state via lawyers group; in the field of law research, law students formed an independent legal research system gradually, proposed the researching method of revitalization of the Chinese legal system, and expressed the willingness to increase legal and cultural exchanges with foreign countries. These series activities can reflect the social life’s changes in urban Shanghai from various aspects.更多还原