建政、救亡与启蒙:再论鄂州约法之人权条款

Political-building,Salvation and Enlightenment: Further Study on the Human Rights Provisions of E Zhou Constitution

鄂州约法在中国宪政史上的意义是以其完善的人权条款而被赋予的。继武昌起义后的各省约法争相效仿鄂州约法,并且完全承袭了其中的人权条款。人权条款的全面性和体系性与军权与民权相约而成的约法性质有关。以鄂州约法为代表的民初约法是在"建政"而非"建国"的意义上使用约法,包括人权条款。因此,人权条款虽然以法条的形式存在,但依然只是具有救亡和启蒙的宣言性意义。人权条款与邹容和孙中山等人的思想颇有渊源,但本质上并未摆脱形式化的色彩。在当时南北革命党人、立宪派和旧军阀官僚的权力争夺中,人权条款几近沦为空文,所幸在此后民国立宪进程中一直被保留下来。

In the history of Chinese constitutionalism,human rights provisions in E Zhou Constitution have important significance. After the Wuchang Uprising,various provinces had followed E Zhou Constitution,and fully inherited its human rights provisions. Human rights provisions with their comprehensiveness and systematicness were related to the constitutional nature of the military power and civil rights conventions. E Zhou Constitution as the representative of early Republican Constitution meant ＂ Political- building＂ rather than ＂ nation- building＂,including human rights provisions. Therefore,although the human rights provisions were in the form of the articles of law,they had still expressed only the declaratory meaning of salvation and enlightenment. Although the human rights provisions were still essentially related to the thoughts of Zou Rong and Sun Yat- sen,they were still characterized with the nature of formalization. In the power struggle between North and South revolutionaries,constitutionalists and old warlords and bureaucrats,the human rights provisions became null and void,but fortunately the next Republican Constitution had retained these terms.