The Legal Dimension Of The National Identity In Modern State-building Of China

The national identity is a very important issue of the modern state-building. It is not only the life and the soul of the modern state-building but also concerns the existence of the modern state-building. During the process of modernization, China is faced with the problem of the transformation from an “imperial country” to a “modern state”. Considering the national identity in modern state-building of China, which is at the stage of the transformation from the type of “pressing national identity” to the type of “jointnomy national identity”, from the type of “sovereignty national identity based on the ideological” to the type of “legal identity”. The modern national identity is ought to be a constitutional identity or legal identity.However, at present, the national identity is still based on the sovereignty and geography; there is still no idea of constitutional identity or legal identity at the level of the perception and conscious in China. The maintenance of national identity relies on the top-down power, not the jointnomy based on the citizen participation. The reason why constitutional identity or legal identity do not exist at the level of the perception and conscious relates to the idea “dynasty politics” in ancient China, where was only a concept of “TianXia”, instead of the concept of the “state”. The “state” is equivalent to “TianXia”, even the “dynasty”. The constitutional movement in the late Qing Dynasty has disintegrated the concept of “TianXia”. The outbreak of “Xinhai” Revolution and the founding of Republic of China established the modern state concept of China. Then, the concept of modern state of China experienced a series of evolution as follows. Firstly, during the governance of Beiyang Government, the “dynasty concept” drew back to the concept that is under the “sovereignty national identity”. Secondly, during the period of Nanjing National Government, which was leaded by Kuomintang of China, the concept of “party” replaced the concept of “country”; Finally, since the People’s Republic of China was established, national identity has become a mixed type of concept, which includes the identity idea of the geography and sovereignty based on the People’s Republic of China, the national spirit of “a same stand, a common destiny” based on the process of defending the foreign enemies, the idea that the new China will not exist without the Communist Party is based on the thanksgiving of Chinese people for the Communist Party of China. The modern state has built a series of modern political institutions and legal institutions, but the concept of the national identity still did not complete the transformation from the identity with form to the substantive identity with democracy and constitution.Considering the practice of the national identity in modern state-building of China, during this period, modern political institutions and legal institutions have already been established. The idea of the sovereignty and geography identity is the main identity idea, but the “dynasty concept” also exists simultaneously. The Chinese tradition “Jiatianxia” was conflicting with the concept of democracy and rule of law insidiously, which means that there is a gap between sovereignty identity and legal identity. The strong sense of violent revolution renders the national identity to an instable condition. China cannot gather public feelings by the perfect legal construction because of a lack of the concept of legal revolution. The national identity in modern state-building of China has some problems of autocracy against democracy. The rule by man suppresses the rule of law. The national identity’s goal achieved relies on enforce unilateral action; during the process of modern political institution-building, the confliction between “big power” and “weak rights” due to the lack of supervision of the public power and the protection of the citizens’ rights had shaped the national identity with form. Finally, there is a confliction between the identity with form and the identity with substance.At present, the national identity of China is required to transfer from the type of “pressing national identity” to the type of “jointnomy national identity”, from the type of “sovereignty national identity” based on the ideological to the type of “constitutional identity” and “legal identity”. To build the legal identity in China, attention should be paid to the legal construction of the country. On the one hand, in terms of hardware system, the democratic discourse institution should be built; on the other hand, as for software system, the constitutional culture and the democratic political culture based on the public reason in China should be cultivated. We aim to complete the reconstruction of the national identity from the “subject”, the “people” to the “citizen”, which is to reconstruct the “Chinese nation” as a legal community through the legal construction of the country.