Idiosyncratic Studies On The Constitutionalism Theories Of Modern China

Modern China's constitutionalism schools of thought happened in the time context of'saving the nation from extinction and struggling for survival'(Jiu Wang Tu Cun). The nation's prosperity and mightiness became the principal value appeal of constitutionalism. Whereas in accordance with the theories of societal evolution and the thoughts of the state organism, a nation's prosperity and mightiness is directly dependent upon the abilities of the people (min) who consisted of the nation, therefore, liberty is called for to'liberate'the talents and capabilities of min. Accordingly, the freedom of individuals became the means to stimulate the intelligence and moralities of min (min zhi min de) so as to fulfill the aim of the nation's prosperity and mightiness. This is the logics of thinking of modern intellectuals in reflecting the relationship between the individuals and the nation. It is also the distinctive theoretical foundation of modern China's constitutionalism. The freedom of individuals are only recognized unless it benefits the prosperity and mightiness of the nation; vice versa, the individuals'freedom and interests, if not in compliance with this paramount value standard will have to be abandoned.Different from the western constitutionalism, which, in the dualism relation of individuals and the nation, aims to protect human rights, modern China's constitutionalism painstakingly pursued the consistency of the individual and national interests governed by the aim of prosperous and mighty nation. Therefore, to modern China's constitutionalism, it is to establish the cooperation of individuals and the nation so as to simultaneously stimulate the individual and national interests rather than to define insurmountable boundaries between individuals and the nation that is critical. As a matter of consequence, this brought about the various characteristics of modern China's constitutionalism in the understanding of democracy and rights, the designing of the powers structure, the legitimacy mechanism of the public opinion, the relationship of the constitution and the government and so on. This thesis aims to illustrate and unscramble these characteristics of modern China's constitutional theories.This thesis is comprised of Introduction, Body-text (including five chapters) and Conclusions.Chapter 1 The Context of Modern China's Constitutionalism. China was forced to approach modernization under the threat of force from the western. The societal evolution theory, through explaining the extant crises and depicting the promising future, inspired the spirit of enterprise of the Chinese people. Exploration of the means to realize the prosperous and mighty prospect was gradually progressed through trials and errors. After the Sino-Japanese War of 1894, constitutionalism eventually took the place of westernization and was firmly established as the tool to realize the prosperity and mightiness of the nation. The constitutional theories with the nation's prosperity and mightiness as its aim, on the one hand, require thinking about the relationship between constitutionalism and the nation; on the other hand, need to break through the thinking pattern of western-orientation and to consider how to utilize and transform traditional culture.Chapter 2 The Theoretical Foundations of Modern China's Constitutionalism. Presetting and pursuing the consistency of the individual and national interests is the theoretical foundation of modern China's constitutionalism. The preset interests consistency healed the strains between the nation's prosperity and mightiness and the individuals'liberty, justifying the distinctive constitutional value systems. The individual-societal relationship from the perspective of Confucianism, is the traditional cultural resources of modern China in seeking the consistency of the individual and national interests. Because individual interests are contingent on the survival or extinction and mightiness or weakness of the nation, therefore, priority of the prosperity and mightiness of the nation is not unconcerned to the liberty of individuals, but is exactly the deeper and more practical concerns to individuals'liberty. This is what modern intellectuals thought about the relationship of the individuals and the nation. By and large, they were simultaneously nationalists and liberalists.Chapter 3 Civil Rights and Democracy of the Constitutional Theories. Civil rights are between the monarchy and democracy; they can both assist regality and turn to democracy. After the failure of the congressional politics at the beginning years of the Republic of China, the connotation of democracy was condensed to'anti-regality'and'rule by the majority'. After the monarchy eventually exited from the historical stage, the anti-regality connotation of the democracy withered accordingly. The democracy of the rule by the majority relied not upon'rules'but on'power', which required active participation of the citizens. During the period of the May 4th movement, with the introduction of classical analysis and economical democracy, the ideologies of the democracy underwent transition. The finally stabilized new democracy, inheriting from the Chinese traditional culture and the thoughts of the modern civil rights, are of rational utility, collectivism, centralism and based on the economy.Chapter 4 The characteristics of designing the constitutional system. The fundamental characteristic of modern China's constitutionalism lied in presetting the consistency of the individual and national interests and in the collectivism with the priority of the nation. The characteristics of the concrete systems are all the internalization and concretization of this characteristic, including through such methods and systems as the classical analysis, cooperative governing, the representative system to pursue and express the consistency of the interests; rights are of morality, instrumentality and obligation-orientation; the relatively concentrated structural design of the power; the relationship between the military power and the constitution, government and parties; the relationship of the economic systems and the democracy and constitution.Chapter 5 The Mechanism and Legitimacy of the Public Opinion. The mechanism of the public opinion includes the legitimacy mechanism of the public opinion and the mechanism of the public opinion outside the legitimacy. As the legitimacy of the western public opinion is internalized into the (governing rules of the) constitution, therefore the behaviors of the government (or the rulers) must comply with the constitution, hence the so-called constitutional government. Modern China entitled the legitimacy of the public opinion to the rulers, which allowed for great flexibility and maneuver for the governing behaviors. Outside of the legitimacy, after the expressive mechanism of the public opinion in the congress system malfunctioned due to'deliberation without decision'(yi er bu jue), expression of the public opinion from the public voice became the principal impetus for the subrogation of legitimacy. However, the subrogation of the legitimacy of the public opinion is not a transition from the governors to the governing rules, but a transference from one governor to another. It is a constitutional ideal of modern China to transpose the legitimacy of the public opinion into the constitution and resolve the legitimacy problem of the constitution per se. Developing a concrete,'deliberating with decision'mechanism of the public opinion is one possible way to realize such a constitutional transformation.