文化基因与近代中国宪法变迁

Cultural Genes and the Changing of Constitution in Modern China

宪法本非中国既有之物,而是随着欧美列强的"坚船利炮"舶来。中国前立宪状态下的政权合法性基础是以"天命王权"为核心的"德命"系统,政治体制是儒家君主官僚政体。鸦片战争以降,这种统治模式在内外交困的局面下为立宪政治取代。然近代中国宪法变迁呈现出形式和实质相背离的双重特点,立宪主义精神被剥离,工具主义、文本浪漫主义和权力决断是其突出特征,而这又是由沉淀下来的"德命"系统中"上下一心"传统决定的。换言之,文化基因决定了近代中国宪法变迁的方向与限度。

The constitution,borrowed from western countries,was not a product of Chinese tradition.In former China,the regime legitimacy of government was ＂rule of god through the king＂and the form of the government was a＂ Confucian monarch bureaucratic polity ＂.This form of the government was replaced by a constitutional polity after the Opuim War.However,the changing of constituion in modern China revealed a notable feature that the formal feature and the substantive feature was deviated.The spirit of constitutionalism was stripped.Instrumentalism,The Text of Romanticism and The Power Decision were its prominent features,which was determined by the cultural gene of Unity of the higher and the lower.In other words,the cultural gene decided the direction and limitation of the changing of constituion in modern China.