Kneeling for Kang Youwei's revolutionary story? Urgently needed ~

History cannot repeat itself, but different historical times may have similar problems. 19 At the end of the 20th century, China, like today, was in a period of social, political and legal transition. Therefore, studying the development of constitutional thought since 100 has profound reference significance for today's constitutional science and contemporary constitutional construction in China. Kang Youwei was the most influential thinker in the late Qing Dynasty and the early Republic of China. In the last years of the19th century, he led the Enlightenment of China intellectuals. First, he wrote a letter on the bus at 1895. Later, he launched a top-down political system reform in the form of admonition. Before Kang Youwei, no thinker dared to repeatedly put forward his own suggestions and opinions on reforming China's political system to the emperor like Kang Youwei. In the history of China, he advocated the combination of Chinese and Western political systems for the first time, and put forward China's constitutional government for the first time, and put forward specific constitutional plans: advocating civil rights, setting up parliament, holding elections and local autonomy, and gradually learning from western constitutional experience on the premise of adhering to Confucian tradition and absolute monarchy. Kang Youwei's constitutional thought has many conservative elements, but as an integral part of China's national ideological and cultural achievements, we should still attach importance to it.

I. Kang Youwei's Contribution to the Constitution

Kang Youwei was one of the earliest people who explored constitutionalism in China. His constitutional thought can be examined from the following three aspects.

Introduce the concept of governing the country according to the constitution

Before the Reform Movement of 1898, China's feudal system remained for more than 40 0 years. It can't be said that there is no law, nor can it be said that there is no "ruling the country according to law", but the law comes from the monarch and the power is respected by the law; Law, as a ruling tool, binds subjects rather than monarchs; Courtesy into the law, maintaining the feudal hierarchy based on family. When western bourgeois democratic republics were established one after another, and human rights concepts such as freedom, equality and fraternity were introduced to China at the end of 1 9, China was still a society where the emperor "spoke with the constitution" and the monarchy was supreme. Kang Youwei put forward a legal concept for the first time, that is, constitution, which contains the meaning of restricting absolute monarchy. He believes that a country's political system can be divided into three types: autocracy, constitutionalism and republicanism. Under the autocratic regime, "one monarch" and "several ministers rule together", while the constitutional regime is "one monarch and one million people". Therefore, the "constitution" is the "road to reform." China people who studied abroad or sent overseas in the early days also suggested reforming internal affairs and learning from the western political system. However, it is often a simple introduction to the system, without realizing the role of the constitution in limiting monarchical power and confronting feudal autocracy. From Kang Youwei's advocacy of constitutional monarchy to the end of the Qing Dynasty, despite repeated experiences of republicanism, monarchy, democracy and autocracy, all previous governments started with constitutionalism and recorded the basic principles of a country's politics in the constitution, which should be attributed to the first generation of advocates who ruled the country according to the constitution.

Advocate constitutional monarchy

Before Kang Youwei's era, there was only dynasty change in China, but no regime change. Since Kang Youwei, absolute monarchy as a political system has been challenged. Kang Youwei opposed absolute monarchy and advocated constitutional monarchy. He believes that the authority of the monarch is infinite "with geometric axioms" and advocates that "one government stands for politics and democracy does not stand." He also said: "The relationship between monarch and minister is based on the law of man. Some people made laws, and then there were ministers. Today, this legislative power belongs to the public, and the so-called equal employment law is also the most beneficial to mankind. " Therefore, Kang Youwei clearly put forward the concept of identity equality as the theoretical basis of bourgeois democratic constitutionalism in China. Before and after the Reform Movement of 1898, Kang Youwei's choice of constitutional mode changed. Before the Reform Movement of 1898, he advocated a centralized constitutional monarchy, similar to Japan and Germany. But after the Reform Movement of 1898, he advocated a virtual monarch, similar to Britain. (3) During the Reform Movement of 1898, he thought that the "reform" should be "with the heart of Peter the Great in Russia and the heart of Meiji government in Japan". The former is intended to emphasize its top-down reform model; The latter refers to the constitutional monarchy established after the Meiji Restoration in Japan. Until 1906, Kang Youwei also analyzed in "The Evolution of the Creation of France" that (France and Germanic) two countries were created at the same time, but their strength was different, which was mainly determined by whether the monarchy could be centralized. (4) Some people think that after the Revolution of 1911, Kang Youwei still advocated constitutional monarchy and opposed the establishment of a democratic republic, in fact, he maintained feudal autocracy. I think this view is one-sided. After the Revolution of 1911, Kang Youwei advocated constitutional monarchy, but the so-called virtual monarch, "named emperor, but not emperor", the functions and powers of the monarch were stipulated by the Constitution. "The Constitution was drafted by the Senior Advisory Committee, from civil rights to the Ming Dynasty", and the Constitution is "the highest law and power of a country". ⑥ In this design, the legislative power, administrative power, personnel power and military power of the emperor under the autocratic regime are all in name only, which has undergone a qualitative change compared with the constitutional monarchy advocated by Kang Youwei during the Reform Movement of 1898. Although he opposed revolutionary republicanism and thought that democratic republicanism was not suitable for China's national conditions, it should be pointed out that democratic republicanism and virtual monarchy republicanism were also manifestations of modern bourgeois democratic republicanism. From the development history of constitutionalism, the modern constitution and constitutionalism originated in Britain, and its main feature is the establishment of British constitutional monarchy, which is undoubtedly a historical transcendence of feudal autocracy. Until today, its historical significance should not be denied. Therefore, ignoring the historical process and the characteristics of the times and asserting that Kang Youwei's constitutional thought after the Revolution of 1911 is anti-modern, is precisely ignoring the characteristics of the times in which he lived, and is an evaluation imposed on historical figures by the concept of modern people.

A political organization that advocates checks and balances.

Collegiate deliberation and decentralization are special means to limit centralized rule in a traditional or rational way. Together, they made contributions to modern management and constitutionalism. ⑧ The French Revolution, as the most magnificent scene in the world constitutional history, once clearly stated: "Any country that does not establish the separation of powers and whose rights are not guaranteed has no constitution". Kang Youwei affirmed the rationality of the theory of decentralization and checks and balances in theory very early. In the Public Law of Practice (65,438+0,888 BC) written before the Reform Movement of 1898, Kang Youwei thought that "everyone in the world, from ancient times to the present, is not in the system of mutual opposition." Pet-name ruby he thinks: "If legislation is made according to the principle of' one shun and one inverse', whoever makes the earth ancient and modern will be able to neutralize others, but people cannot neutralize others. ..... then there will be people who are good at making a fortune with power, living under power, and those who are opposed by power will suffer. " Song Bolu, the acting imperial envoy, participated in the drafting of "orderly reform, seeking quick decisions and saving the day", in particular, he pointed out the main content of the separation of powers: "Taiwei deliberates on politics, that is, the separation of powers. The three powers are officials who discuss politics, administrative officials and judicial officials. The regime of the old country is also the body of the Jews. Politicians are like hearts, politicians are like brothers and sisters, and judiciaries are like eyes and ears, each guarding his official and then doing things. " ⑾ At the same time, he opposes the overlapping of institutional settings, and thinks that the drawback of China is "too much management and too few small officials." ⑿ The principle of "separation of powers and checks and balances" in the Constitution includes two levels. First, the supreme sovereignty is divided into legislative organs, administrative organs and judicial organs according to their categories and powers, which are under the responsibility of independent organs respectively, and there is a restrictive and balanced relationship between them; The second aspect of decentralization is the decentralization and checks and balances between the central and local governments in the form of state structure. Judging from Kang Youwei's later reform practice and political theory, he didn't have much special discussion on the separation of powers. But he advocated parliamentary politics, which was actually centralized monarchy; Advocating local autonomy is advocating centralization of local decentralization.

Civil Rights Thought and Political View

Before Kang Youwei, China had the idea of "people-oriented", but he didn't have the idea of civil rights. Kang Youwei absorbed the western liberal concept of civil rights and emphasized civil autonomy. Kang Youwei systematically put forward his own view of civil rights in the book "Public Law Book Catalogue Summary and Practical Public Law Encyclopedia". He believes that all men are born equal and full of differences at the same time. These people who are full of differences are independent and autonomous, and they should "use the law of equality" to regulate this. He not only advocated equality between the young and the old, equality of friends (governing the country and discussing public laws), but even equality between the monarch and the people. In the book "On the Practice of the Door of the Monarch and the Minister" (a quote), he argued: "People who establish a monarch think they are their own defenders." Guy is like two people who have an intersection, and he has found another person as a mediator. So everyone is a minister, and many people can be collectively referred to as jun "14. Comparing the monarch to the witness in the contractual relationship, instead of using the monarch as the legal source of all social relations in the past, was a great progress in thought at that time.

Based on the theory of civil autonomy, it advocates local autonomy.

He thinks: "China's serious illness lies in the official ruling on behalf of the people, not listening to the people's autonomy", "The significance of legislation is to think of the country, not the people, but not to seek chaos and governance. ...... (Therefore) there are big officials without small officials, state officials without township officials, state administration without civil affairs, and generation governance without autonomy. " The local autonomy advocated by Kang Youwei is similar to "feudalism of the ancients". "But the ancients, a troubled times, have the world, have the battle of selfishness, so it is not feasible. Today, if we rehabilitate feudalism, listen to the people's autonomy, consult the audience's opinions, and everyone works for their own public welfare, then the geographical advantage will be greatly improved and the manpower will be greatly improved ... ". He also put forward a specific frame of reference, that is, "adopting the system of Britain, Germany, France and Japan because of the old habits of rural cities", and taking "people with more than 100,000 people as a game, or a city, …" ⒂ Other specific designs. At that time, local autonomy was proposed to oppose the traditional unified state structure in China. Local autonomy is conducive to mobilizing local enthusiasm, reducing the burden on the central government, promoting local political clarity and forming a restraining force on the central administration. Moreover, local autonomy is based on the rule of man, which is qualitatively different from China's separatist autonomy or local autonomy maintained by the rights of gentry and clan. From the legal and administrative traditions of China, there are many norms for maintaining state order, such as "the law of governing officials" and local norms, but their starting point is "governing the people" rather than "governing the people". Local self-government with the goal of "rule by the people" began with the enlightenment of the Reform Movement of 1898 represented by Kang Youwei. It should be pointed out that although Kang Youwei advocated local autonomy, he always opposed the joint provincial autonomy and maintained the unitary state structure. During the period of 1920, warlords scuffled and various places became independent. Some people put forward the theory of joint provincial autonomy according to the federalism of the United States and Germany. In this regard, Kang Youwei knows very well that the reason why the United States and Germany implement federalism is that they were "long-term separated countries" before the founding of the People's Republic of China, and the implementation of federalism is precisely for reunification. However, in 2000, after the Han Dynasty, China was founded on the basis of reunification and adopted joint provincial autonomy. In fact, it is to divide the country and land, and it is a "local government without autonomy." In fact, warlords are autocratic, "only the military rule of the separatist regime has been produced, and the people's rule has been produced, so the word autonomy need not be used in vain." ⒄ Kang Youwei's assertion was later confirmed by the historical development of China.

Second, the limitations of Kang Youwei's constitutional thought

First of all, although Kang Youwei's constitutional thought has inspired and influenced the later constitutional theory, there are many conservative elements in it, which are mainly manifested in the compromise of monarchical power, the absorption of traditional and dominant thought of rule of etiquette, and the confluence of Confucianism and law. The conservative constitutional view is successful in the west. However, in Kang Youwei's era, conservative constitutional thought could not solve the crisis in China. At that time, the international and domestic contradictions faced by China were very prominent, and there was a triple crisis of survival, nationality and democracy at the same time, and Kang Youwei's constitutional view was most concerned about the survival crisis, that is, the status of China in the world. Both the establishment of the system and the equality between Manchu and Han are the means to enrich Qiang Bing. Even if Kang Youwei's political reform can succeed, it can only solve part of the crisis in China, that is, the problem of survival. But on the one hand, the existence of the Qing government itself was challenged by the legitimacy problem. As a traditional way of ruling, absolute monarchy has been unable to adapt to the development of China society. On the other hand, with the introduction of western democratic ideas and the maturity of the national bourgeoisie, the idea of gradual and harmonious conservative reform is challenged by the more intense and rapid national democratic revolution, especially Manchu officials are very worried about losing their vested power, while a large number of Han people are dissatisfied with the long-term ethnic inequality. Secondly, the reformists represented by Kang Youwei lack the support of mature class forces. Engels profoundly pointed out when evaluating utopian socialism theory: "Immature theory is suitable for immature capitalist production and immature class conditions". ⒅ Although some people say that Kang Youwei is a representative of the upper national bourgeoisie, so far, there is almost no conclusive and credible historical evidence to prove that the upper national bourgeoisie existed before the Reform Movement of 1898. In fact, Kang Youwei's thought of political reform originated from the special class in the social transformation period of China in the19th century. Although they opposed the autocratic system, they had to rely on the enlightened bureaucrats in the autocratic system because they had not yet formed an independent national bourgeoisie at that time. Because of this, the reformists' actions to promote constitutionalism are weak. Before the Reform Movement of 1898, the constitutionalists, represented by Kang Youwei, took refuge in the Imperial Party, which was prepared to compromise with the old guard because of its lack of strength, leading to the failure of the New Deal. After the Reform Movement of 1898, they still hoped for the reform within the Qing government. After the Revolution of 1911, Kang Youwei was unwilling to accept the new national bourgeoisie and petty bourgeoisie camp because he advocated the restoration of monarchy, and his political ambition could never be realized. Third, Kang Youwei lacks a deep understanding of the value of western constitutionalism. Due to the limitation of the times, Kang Youwei's understanding of western learning still stays on the basis of "implements" theory, and it is impossible to strictly distinguish bourgeois democratic politics from feudal enlightened politics. As far as the source of constitution is concerned, constitutionalism includes two aspects: the value theory of constitutionalism and the normative form of constitutionalism, in which the value of constitution is especially accompanied by bourgeois democratic revolution. This is a "new beginning", which reflects the interests of the newly born and victorious bourgeoisie. Kang Youwei's constitutional ideal is based on social evolution theory, hoping to reconcile the contradiction between monarch and civil rights, slow down the impact of new forces on feudal autocracy and maintain the old system. Therefore, Kang Youwei's understanding of the Constitution is inherently contradictory. On the one hand, he emphasized that the constitution is "the beginning of reform"; On the other hand, it is said that the Constitution is a continuation of tradition, and that China's cultural and educational customs are the unwritten constitution of Britain. This actually confuses two traditions: the tradition of civil rights and the tradition of monarchical power, and only unifies them in the normative order of "rule of law" or "constitution". In fact, the most important difference between the bourgeois constitution and the "classical" constitution (Greek city-state or Roman Republic era) is that the constitutional spirit they emphasize is different. For example, the radical Paine emphasized the political significance of the word constitution, and believed that the constitution not only stipulated the organizational form of the government, but also protected citizens' rights from the infringement of government power. 2 1 Kang Youwei realized the value of civil rights, but when the realization of rights conflicts with the efficiency of power, he will inevitably sacrifice principles for "efficiency". For example, on May 28th, the 24th year of Guangxu, Kang Youwei said, "The monarch is still the father, and the people are still the children. People in China are like children. If you ask a family, the number of babies is not decided by parents, let children and babies learn by themselves. A warning to you, China only depends on the monarch to rule the world. If it is vigorous, it will take shape in early March and achieve results in two years. " The same is true of the establishment of the House of Representatives. Kang Youwei has always praised the western representative system, but he advocated that the system bureau, the collection office and the Qin Dian all belong to the monarch's think tank, not the elected institutions. Moreover, the House of Representatives, as the power organ of the bourgeois countries, appeared on the historical stage as the antithesis of the feudal monarchy. Kang Youwei and the advanced thinkers in China at that time often understood its function from the perspective of "connecting the lower emotions". In this way, the establishment of the House of Representatives did not deny the feudal monarchy, on the contrary, it became an effective mechanism to strengthen the feudal state machine. This inevitably leads to many difficulties in its constitutional practice.

Third, the source of Kang Youwei's constitutional thought.

Hugh? Cecil believes that there are three main sources of conservatism in modern Britain, namely, the natural conservative tendency of human beings, royalism and imperialism. Putting aside the "natural conservative tendency of human beings" and analyzing the development of Kang Youwei's constitutional thought, we can find that Kang Youwei's constitutional thought mainly comes from Confucian tradition and "tongzhi complex". The evolution of Kang Youwei's early thoughts experienced a tortuous process from Confucianism to Buddhism and Taoism, and then from Buddhism and Taoism to Western learning. Due to the influence of family environment, Kang Youwei began to receive orthodox Confucian education at an early age. 1 879, Kang Youwei met with Zhang Dinghua (Qiu Yan), which was an important turning point in Kang Youwei's growth. From then on, he "abandoned the study of textual research" and began to read the Collection of Recent Situations of Western Countries. "When I visited Hong Kong, I saw the beauty of western palaces, the neatness of roads and the strictness of patrols, and I realized that westerners ruled the country and could not regard it as an ancient foreigner." In the 23 rd year of Guangxu (1 882), Kang Youwei returned to the South China Sea from Beijing to take an exam, "explain what he saw" and began to "talk about western learning". During this period, Kang Youwei's contact with western learning was still mainly based on travel notes and history, which did not make him give up Confucian orthodoxy. Instead, he "sublated" traditional Confucianism, and made an experiment of learning new classics and reforming the Confucius system. When evaluating the status of modern Confucian classics in China, Tang Zhijun pointed out meaningfully: "Reforming feudal Confucian classics ... washed away feudal forces and promoted ideological emancipation. ..... In order to maintain the "Chinese style", the feudal rulers can only say that they want to "take it"; The transformation of the bourgeoisie from "revolutionary politics" to "revolution" is also related to Confucian classics. The change of Confucian classics is a reflection of the social unrest in modern China in the ideological field, and Confucian classics can still play its role of' change' in modern China, indicating that its traditional influence is still very deep. " Because of his adherence to Confucian orthodoxy, Kang Youwei consciously abandoned some democratic ideas prevailing in modern western countries. For example, starting from the different cultural origins of China and the West, he pointed out: "There are two differences between China and the West: one is the trend and the other is the custom. The two are different, and China's right and wrong cannot be tied together. " . Although his main purpose is to criticize "China ..... being polite but weak. Tessie ... respects sages and can be strong, but after all, she thinks that "fortunately, the knowledge of sages is deeply rooted in people's hearts, so Qing can maintain its position." Otherwise, today's laws won't work. After the Revolution of 1911, he even bitterly condemned: "Today's Republic is not the life of the Qing Dynasty, but the life of Confucius' holy religion and the life of the Yellow Emperor nation, so it can be shocking and painful. Nothing is more than this. "Stealing a prescription can stop diarrhea and sink; Regardless of the people, the regime is enough to build a country. There is a difference in strength between the old and the young, and there is no one-size-fits-all method: the state-owned historical customs are different, so it is difficult to give up on yourself completely divorced from others. If you do something wrong, you can die today. The doctors in China did something wrong. Several people killed China with the Republican Party, and the result has already been seen. " He also said, "The leaders of state ceremonies kneel down, and the people of China do not worship heaven, society or Confucius." This is in line with his later practice of "introducing Confucius into the Constitution". The second source of Kang Youwei's conservative constitutional thought is his "Tongzhi Complex", that is, the kingship of China. In Seventy Years of Grateful Life (1 92 7), Kang Youwei said: "I am a humble person by the sea, and I have no knowledge of literature. Thirteen, although I am a scholar, I am not a scholar. At the age of forty, I am still unknown ... The first emperor ... chose ministers in obscurity, and the counselors relied on reform and self-improvement, and the counselors played exclusively. Later, when Liang Qichao tried to cooperate with the revolutionary party, Kang Youwei strongly opposed it and accused Liang Qichao of failing his grace. The reform advocated by Kang Youwei is still a dispute resolution mechanism within the ruling class, and it is a self-"reform", which has not risen to revolution. If the "Institutional Bureau or Qindian" is the institution that Kang Youwei once stayed in during the Reform Movement of 1898, so as to participate in the political reform guided by the central government of the Qing Dynasty, then after the Revolution of 1911, after the monarchy was overthrown, he still insisted on safeguarding the interests of the monarch until he instigated the restoration, which fully showed his conservative side. Finally, after the Revolution of 1911, the regime was in an unstable state for a long time, which also made Kang Youwei lose confidence in the Republic. After the Revolution of 1911, warlords scuffled and various factions took turns to govern. Kang Youwei once said with emotion: "If I use the French responsible cabinet system, the president and the prime minister will compete with each other every day, while Li, Feng Huafu and Xu will not be able to fight. As for Germany and Hunan. Even the military's article 2 1 has been contested with Japan. After several falls, it was later carved up. Fortunately, Germany defeated the United States, and Japan canceled the contract, otherwise China would have died. This French Republic is not feasible. Guangdong implements the "seven presidents" system in Switzerland, but the Swiss system is not feasible because of the disaster of Cen, Wu, Sun and Tang. ..... In the past 12 years, it was called the Republic, but it was a complete struggle, a complete chaos, a complete killing, in order to call for condominium. " Therefore, he thinks that the Republic of China is called the Republic because of "the slaughter of Qin Shihuang's autocracy, ..." 31Kang Youwei, who was nostalgic for the monarchy, lost confidence in the democratic republic again after more than ten years of political reality after the Revolution of 1911, and turned to support the restoration of the monarchy and opposed the democratic republic at that time. Marx profoundly pointed out in Critique of Hegel's Philosophy of Right: "When the old system itself still believes and should believe in its own rationality, its history is tragic". Kang Youwei was the first scholar and reformer in modern China who raised the banner of the Constitution to question and challenge feudal autocracy. Although his reform thought had obvious historical limitations, it did not prevent him from becoming the first person to enlighten China's constitutional thought in modern times. As Cassirer realized when evaluating enlightenment thought in Europe, historically, although Enlightenment philosophy is keen on progress, trying to break the old legal framework and establish a new outlook on life, its basic feature is to return to the old philosophical problems repeatedly. On the one hand, this duality of opposing the modern and existing order, but on the other hand, constantly returning to the ancient thoughts and problems can also be used to understand Kang Youwei's limitations and progress on constitutional issues. Furthermore, although Kang Youwei's efforts to combine Confucian tradition with western constitutionalism became a "tragic history", as a method, the idea of transplanting and drawing lessons from foreign legal experience and taking into account China's national conditions was inherited by later scholars.