Research On Bing Ling-zhang's Nationalist Legislation Theory(1899-1914)

During the late Qing Dynasty,along with the deconstruction of the traditional world system,fierce conflicts and integrations occurred between modern ideology and tradition.In order to abolish the unequal treaties,the modernization of Chinese law system has been accelerating.The future and destiny of the country has also led Chinese intellectuals to pay attention to issues like whom to legislate,which value to take,and what law is to legislate.As a revolutionary politician,Bing Ling-Zhang's thoughts are both traditional and modern,and have strong characteristics under the collision of Eastern and Western cultures.Analyzing his legislative ideology can help us better understand the starting point and essence of Chinese jurisprudence.As a traditional scholar who accepts new ideas,Bing Ling-Zhang's ideology embody the contradiction between tradition and modern.Traditional classics,modern Western ideology and Meiji Japanese social trends have all become the source of Bing Ling-Zhang's ideology.The distinctive nationalism,the pursuit of democratic politics and emphasis on Chinese native characteristics made his ideology a modern nationalism.At first,Bing Ling-Zhang advocated reform and then turn to revolution,but the purpose of what he has done is consistent.Their difference is just between terms and means.The fusion of tradition and modern nationalism in his ideology was reflected in the form of establishing a national state.His claim is democracy and nationalism.Bing Ling-Zhang gave a dichotomy to the traditional monarchy.Although the actual monarchy was generally rejected,he gave a high evaluation to idealized monarchy,which became the basis of his theory.Based on the negation of the monarchy and the representative system,Bing Ling-Zhang denied the autonomy of nation and took the nationals as the main body of nation,thereby designing an anti-representative democracy.In this opinion,the power of the state is divided into four areas: legislation,administration,judicature,and education.Without setting a permanent parliament,Bing Ling-Zhang let the civil elite to formulate laws and the nationals to determine its effectiveness through negotiation.In order to ensure smooth communication between nationals and nation,he guaranteed the right to express and limited the authority of representatives to ensure that representatives are always for the people.To the law amendment aimed at abolishing unequal treaties,Bing Ling-Zhang pointed out the danger of its confusing means and purpose,and advocated that the locality of a country's law should be valued in legislation.To prove it,he returned to the traditional law to find references.On the one hand,he combed out excellent regulations from Qin Dynasty to Ming Dynasty,on the other hand,he investigated the Five Dynasties Law.By analyzing the regulation and tradition,Bing Ling-Zhang interpreted the spirit of Chinese law.Although his expertise is not in the legal field,his aggressive spirit and unique insights still Inspiring the world today.Bing Ling-Zhang 's legislative ideology emphasized the value of neutrality in the construction of legislative power by negating the monarchy and the representative system;he also replaces competitive elections with negotiation and gives the people extensive rights to negotiate on specific issues;his criticism towards utilitarian legal innovation theory always maintains its value.At the same time,Bing Ling-Zhang 's theory still has its disadvantages.His excessive subjective projection in the process of legal history research has led to a self-circulation,which undoubtedly weakens the objectiveness of his ideology.He also denies indirect civil rights and proposes to transfer state power.To a certain extent,the claims of all citizens also have some populist meaning.But the flaws are not concealed.Bing Ling-Zhang 's understanding of national subject status in the legislative concept,the assumption of deliberative democratic legislation and the orderly participation of citizens and his anti-utilitarian legislative principles are both of great value for the legal reform movement in the late Qing Dynasty and the modernization of China's governance capacity and system.