A Study Of YangDu's Nationalist Legal Thought

For China,from the late Qing dynasty to the early Republic of China is an extraordinary period of time for its modern national view taking place of traditional Celestial Empire view strongly.During this time,it became the most urgent historical mission to structure new state form and its supporting system to deal with the changed international communication rules.Under the request of this mission,after state turned into quasi single solid,nationalism philosophy aiming at assuring national security,establishing national authority and pursuing national interests became the main mode of thinking and value proposition of prevalent theories in that time.This background decided China's subjective thought when inherited western legal though directly in modern times.At the meanwhile,YangDu showed Chinese thinker's concrete theoretical style absorbed western theories of state played a reproducer role of state form under this thought guidance.Thus,it is helpful for us to find out the type of original state and the starting point of logic of Chinese jurisprudence when the state theory formed in its initial time to analyze his nationalistic legal thought.As the elite in his native country,YangDu was effected by traditional old Chinese learnings inevitably.That affect determined YangDu's thinking inertia and supervisor motivation which is called “native characters” when confront with western theories,the style of the theories of “Wong new next school”,practical style of work of “imperial studies” in Hunan and pursuance of the value in “ChuanShan studies” all had a great deal of effects on YangDu among the traditional learnings.As a constitutional expert studied in Japan,YangDu was exposed to a great deal of western theories.Among the imported theories,what turned into the important support and reference of YangDu's nationalistic legal thought is Japanese “world order” and “state constitution” theory,social evolutionism and the state theory in classical law-of-nature school.The specific content of YangDu's nationalistic legal thought mainly consists four parts.Firstly,it uses a set of theories of civil right to justify the existence of national community.Secondly,it championsthe old familial legal ideology to be denied and replaced by a sort of nationalistic legal ideology.Thirdly,it indicates resolute attitude of supporting monarchy when came across the question of which body type to be chosen.Fourthly,it promotes three specific system,responsible government,party politics and Representative Congress,on the design of national system.Observing the positive role of YangDu's nationalistic legal thought in development pedigree of Chinese jurisprudence,we can find that it enlightened a kind of modern national rationality with progressive meaning;it shows the concept function on the conception of constitution to the new countries;it expatiate a series of political order theories according with the spirit of rule of law.Nevertheless,three defects can be found through the reflection.Firstly,it limited to the theoretical fate of utilitarian “theory of civil right”.Secondly,it caught in the theoretical erroneous zone of the omnipotence of “constitutional theory”.Lastly,it stopped by the localization of elitist “theory of rule of law”.