Research On Yuan-ruo Zhang’s Thoughts Of Constitutionalism

Yuan-ruo Zhang (1904-1996), alias Li-sheng, was a remarkable constitutional scholar and political ideologist in the Republic of China era. He graduated from Fu Dan university in Shang Hai and later went to France and studied in Paris university, and he ever visited England, Belgian, German, Switzerland etc. for learning, which make him have abundant experience and open outlook. After homecoming, he principally teach in the university and worked as an officer in the government organ, which make him possessed double capacities as a scholar and officer. He left us several millions of letters of legal and political writings, which included books of constitutionalism published by some famous presses like The Commercial Press, Zhonghua Book Company and so on, and legal and political articles published on famous magazines like Eastern Magazine, Dongwu Law Science Magazine, Public Opinion of The Time, The Semi-monthly Central Journal and so on, and a large number of review essays to draft constitution in the National Government period. After 1949. he settle down in America and put his whole body and mind in learning and propagating Christianity and left several millions of letters of theological writings. He had a great effect in Chinese Christian group. After he died, many Christians write articles to recall his achievements for expressing yearning to him.Yuan-ruo Zhang was a person ideological history of constitutionalism in china who couldn’t be bypassed. In modern China, liberalists like Shi Hu, Long-ji Luo and so on initiated the campaign of human rights, in which liberalists and non-liberalists spread out fierce argument for problems of human rights and Yuan-ruo Zhang was right an important person participating in the argument of human rights as the opponent of liberalism. When present people researched thoughts of human rights, generation and evolution of rights idea in modern China or researched the campaign and argument of human rights in modern China, even researched liberalism or liberalist--Long-ji Luo in modern China, they necessarily mention Yuan-ruo Zhang’s thoughts. Yuan-ruo Zhang was one of the main inheritors of law science of social solidarity ideology, which he masterly merged into integration with indigenous law science of the Three Principles of the People, which make his thoughts of constitutionalism have powerful ideological basis. In the course of making constitution in National Government era, Yuan-ruo Zhang paid more attention to assign and implementation of system, which make his thoughts of constitutionalism have less fantastic color. Professor Qin-hua He who has engaged in collection, arrangement and compilation of legal literatures of the end of Qing Dynasty and Republic of China era in contemporary China and deeply research into the persons and thoughts of the end of Qing Dynasty and Republic of China era, thought that Yuan-ruo Zhang’s writings had specially important meaning in the course of emergence and growth of constitutional jurisprudence and his works had important function in the course of emergence and growth of jurisprudence in modern China. His two pieces of thesis were included in Picks of Legal Thesis of Republic of China among vast and numerous works of Republic China. Yuan-ruo Zhang had profound basis of national knowledge which make his style of writing have style of ancient writing. His whole thought was a unified, integrated and non-paradoxical academic system and didn’t have scrappy mark. As a patriotic intellectual in Republic of China era, his writings revealed heartfelt anxiety between the lines to his country and society that was in disintegration and domestic confusion and foreign aggression.Yuan-ruo Zhang’s thoughts of constitutionalism were an important part of Chinese ideological history of constitutionalism. However, like a great number of intellectuals in the end of Qing Dynasty and the Republic of China, he have had never technically researched, people’s attention to him still was in the stage of brief introduction and somewhat concerning to him or some kind of his thoughts, which was a bank of Chinese ideological history of constitutionalism. This text roundly hackled and analyzed his thoughts of constitutionalism to cover the bank of ideological history. At the same time, author also want to find out that as a thinker in the Republic of China era, how did Yuan-ruo Zhang struggle against destiny and deal with the dilemma facing the social problems and the dilemma of his period, and what enlightenment can we obtain from the struggle.This text principally does the research for Yuan-ruo Zhang’s thoughts of constitutionalism from four aspects. First of all, introducing his basic experience and primary sources of his thoughts of constitutionalism, then hackling and analyzing comprehensively his thoughts of constitutionalism from idea of constitutionalism, drafting of constitution and implementing of constitution. Finally, we conclude the characteristics, limits and enlightenments of Yuan-ruo Zhang’s thoughts of constitutionalism.Yuan-ruo Zhang once studied in Paris of France, where he received law science of social solidarity ideology that created by famous social jurist of positivism Duguit, and he became one of principal peddlers of law science of social solidarity ideology in modern China. His thoughts of constitutionalism were profoundly affected by this legal philosophy and his knowledge to law, appraisal to liberalism and understanding to people’s rights and duties all had dense color of law science of social solidarity ideology. In the end of 1929, Yuan-ruo Zhang repatriated from abroad, when Nan Jing National Government had already established and had tried out Yat-sen Sun’s Constitution of Five Powers. Contemporarily the Nationalist Party’s nationwide representative assembly had already fixed Yat-sen Sun’s Three Principles of the People, Constitution and Program of Construction and so on to supreme basic bills of the Republic of China in the Period of Tutelage. Accordingly, Yuan-ruo Zhang’s basic idea of constitutionalism, opinion to draft constitution and thinking to implement constitution all received important effect of Yat-sen Sun’s political and legal thoughts. His thoughts of constitutionalism demonstrated he was a faithful supporter and follower to Yat-sen Sun.In the aspect of basic idea of constitutionalism, Yuan-ruo Zhang didn’t admit classic liberal constitutionalism. The constitutionalism he understood was a kind of generalized constitutionalism, the conception of which included two essential factors:rule of law and democracy. Yuan-ruo Zhang considered rule of law as the core factor of constitutionalism. He paid much attention to rule of law, which he sometimes didn’t distinguish with constitutionalism, as rule of law firstly was the rule of constitution and constitutionalism merely was the results that constitution was implemented in practice from some kind of angle. However, Yuan-ruo Zhang’s thoughts of rule of law were a kind of formal thoughts of rule of law and he didn’t emphasize rule of law must be the rule of good law. His legislative standard was positivism that constitution and law should accord with international tendency and temporal trend. Yuan-ruo Zhang summarized constitutional tendency all round the world and unified it to the frame of nationality, civil rights and the people’s livelihood, which formed the legislative principle of the Three Principles of the People. Yuan-ruo Zhang considered democracy as an indispensable factor of constitutionalism and he thought democracy didn’t equal with representative system, which was only one of the democratic forms. With the development of era, the representative system exposed a lot of malpractices which must be reformed in order to better realize the value of democracy.In the respect of drafting constitution, although Yuan-ruo Zhang didn’t propose his own constitutional bill when National Government drafted constitution, he published his advices and suggestions to making constitution in every public commentary stage of constitutional bill. In the course of making constitution in the Period of Tutelage of Republic of China, there was an argument between Yuan-ruo Zhang and Long-ji Luo about whether "human rights" should be written in the constitution, which demonstrated Yuan-ruo Zhang’s opinions to civil rights and human rights. From the contrast to Long-ji Luo, Yuan-ruo Zhang’s distinct standpoint was broken out and there was contrary support of philosophy fundament behind the both. Author attempts to understand Yuan-ruo Zhang’s thought and anxiety from the social situation at that time. The constitutional system in the National Government era primarily included three respects:people’s fundamental rights and duties, national economy and education and deployment of national powers. This section will respectively conclude, narrate and analyze Yuan-ruo Zhang’s views to every respect of constitutional system. Although in the idea Yuan-ruo Zhang throughout put rights in minor position, in the design of system he paid much attention to ensuring rights given by legal system. Furthermore, he considered people’s basic duties to his country as the basis to keep the existence of country, so he specially paid equal attention to duties and rights. National economy and education are primary exemplification of the Three Principles of the People (especially the Principle of People’s Livelihood) in the constitution and of socialization of modern constitution. Yuan-ruo Zhang once repeatedly published articles to discuss the relationship between the people’s livelihood and making constitution and the problem of socialization of constitution. Yuan-ruo Zhang paid close attention to deployment of national powers and he separately appraised to national assembly, central institution, jurisdiction between central and local authority. His opinions might be summarized to two kind of relationship:separation of power and efficiency, separation of power and unity. Separation of power is a self-evident mean to design the system of constitutionalism which includes horizontal and vertical separation of power in the deployment of national powers. Yuan-ruo Zhang throughout didn’t throw off efficiency and unity to discuss separation of power in the design of system. So he held presidential system and internal centralization in central authority and separation of power between national assembly and central authority. He also held autonomy of county in the local and opposed autonomy of province to avoid too large provincial power and division of the country.Yuan-ruo Zhang paid extraordinary attention to implementation of constitution. He held that a good constitution was still a scrape of paper and couldn’t bring any action if it couldn’t be implemented. He used massive articles individually narrated the implemental situation of previous constitution, analyzed the reasons that constitution hadn’t implemented and proposed means to carry out constitution. He approved gradual scheme of constitutionalism which Yat-sen Sun prescribed in his Program of Construction. This scheme was approved by many contemporary persons, but also was opposed by some other persons. We can more clearly understand Yuan-ruo Zhang’s thought to implementation of constitution from the argument between two sides.Yuan-ruo Zhang’s thoughts of constitutionalism had utilitarian, social and spatio-temporal characteristics which also had limitation because of the education he received, the occupation he engaged and special social condition. His thoughts of constitutionalism still had enlightenment at the present day.