变法、法治与国家能力——对中国近代法制变革的再思考

Legal Reform,Legal System and State's Capacity

在清末以来的中国社会变革中,法治不是主导性话语,革命、战争与经济建设而非法制才是近当代史的主题。这启发我们认识近代以来中国法制变革的一个新角度其最初的使命并非为了"以法治国",而是"以法强国"。因为在民族危亡之际,中华民族首要与最为急迫的任务乃是增强国家能力以抗外侮,平内乱,应对危机。清末的法制变革之所以失败,就在于它未能成功地增强国家能力并应对这两个挑战。结合政治学、史学与法学的分析可以发现,法治乃是常规社会的稳定器,它在大变革的社会中并不能增强国家能力以对外驱逐侵略,对内重构秩序。法治之要旨固然在于限制国家权力的专横,但在所谓后发国家,法治的建成却端赖于强大的国家能力。而国家能力就是理解近代以来中国法制变革的一个有解释力的理论框架。

Legal system has never been a mainstreaming discourse during the social transformation in China since the late Qing Dynasty, instead, discourse involving revolution, war and e- conomic development has simply been the theme in modern and contemporary histories. This phe- nomenon has inspired us to understand a new perspective in terms of reform of Chinese legal system since modern times, namely, the original task of the reform was by no means aiming at ＂governing the country by law＂, but at ＂strengthening the country by law＂. The reason lies in the fact that at the critical moment when the nation＇ s very existence was at stake, the primary and the most press- ing task of Chinese nation was to strengthen the state＇ s capacity to resist against foreign invasion, put down domestic rebellion and cope with crisis. It is proper to conclude that the failure of the legal reform carried out in the late Qing Dynasty was mainly the result of unsuccessful efforts to strengthen the state＇s capacity and to tackle the above-mentioned two challenges. Taking political, historical and legal analyses in a synthetic way, we may find rule of law has always served as a stabilizer for conventional society and it can not strengthen a state＇ s capacity to drive out invaders externally and reconstruct order internally. No doubt the gist of rule of law is to restrict abuse of state power, but in those so-called developing countries, the building up of rule of law relies heavily on a strong capacity of state. The capacity of a state, therefore, comes to be a theoretical framework, arguably with much strength of explanation, in understanding Chinese legal reform since the modern era.