中国法治政体的始创——辛亥政治革命的法治论剖析与省思

Initiation of Chinese Regime of Rule of Law:An Analysis of the Theory of Rule of Law of the Revolution of 1911

法治政体理论在根本上把法治理解为,只有立宪政体才会要求并实现法律统治的一个政体问题。建立民主立宪的法治政体是辛亥政治革命的目标。为达成这一目标,民国初年的《临时约法》等法律初步构建了中华民国法治政体的雏形,但这一政体也陷入多重困厄之中。孙中山等人对这一政体及其困厄进行了富有价值的探索与反思。从法治政体理论及民初缔造法治政体的实践出发,可以对治法型法治的思想观念进行比较性的检视。

The theory of ＂the regime of rule of law＂ regards the rule of law as an issue of regime. That means governing a government by law can be required and realized only by constitutional regime. Establishing a democratic and constitutional regime of rule of law is the purpose of the Revolution of 1911, which was almost established through laws in the early days of the Republic of China, such as the Provisional Constitution. However, this regime was in multiple troubles. For instance, law such as the Provisional Constitution which was regarded as the core of democratic constitution was abandoned, and the violation of law happened frequently in the field of public power. Besides, the regime was facing challenges to confront the above--mentioned troubles. Sun Yat--sen and other people, focusing on the Provisional Constitution, the constituent power and its procedure, conducted valuable exploration of and reflection on this regime and its troubles. The concept of ＂rule of law as a tool＂ can be studied in a comparative way from the perspective of the theory and practice of ＂the regime of rule of law＂ in the early days of the Republic of China, which helps to distinguish the theory of ＂the regime of rule of law＂ from the concept of ＂rule of law as a tool＂. According to the concept of rule of law as a tool, rule of law is regarded as a tool for the governor especially the sovereign to govern the masses, or a fundamental tool for government administration and social control. While according to the theory of ＂the regime of rule of law＂, rule of law is not primarily to govern the masses by law, hut to govern the public power. To establish the concept of ＂the regime of rule of law＂ is the premise to promote the establishment of such regime.