清末民初礼与宪法关系的反思——兼论中国古代社会的共识

Rethinking on the Relationship Between Li(Rites)and Constitution:On Social Consensus in the Late Qing Dynasty and the Early Republic of China

从宪法地位与功能的角度观察,“礼”在中国古代无疑具有“宪法”的地位与作用,中国古代高度的社会共识是以礼为核心形成的。清末民初,西方宪法思想与制度涌入时,从历史发展逻辑上说,礼本当成为接纳宪法并与宪法相次更迭的最佳选择。然而当时的社会变革却背离了这一逻辑。当西方宪制传入时,主张移植宪法、效法西方的主导者们未能自觉地将礼与宪法相联系。在戊戌变法及清末预备立宪的过程中,礼与宪法互为畛域,宪法失去了传统平台的依托,礼失去了自我更新的历史时机。民国初期“孔教入宪”的争论不仅没有厘清礼与宪法的关系,反而使礼与宪法的对立进一步加深,从而撕裂了社会的共识。反思近代以来,宪法在传入过程中始终未能如人所愿成为价值理念的追求,而是沦为权力角逐的工具,礼与宪法关系的曲折未必不是其中重要的原因。

From the perspective of the status and function of the Constitution,Li(rites)undoubtedly had the status and role of“constitution”in ancient Chinese society,and the high social consensus in ancient China was formed with rites as the core.At the end of Qing Dynasty and the beginning of the Republic of China,when western constitutional thoughts and systems poured in,from the development logic,rites should be the best choice to accept and replace the Constitution.However,the social change at that time deviated from this logic.When the constitutional thought and system were introduced into China at the end of Qing Dynasty,the leaders who advocated to accept the Constitution and follow the example of the West did not consciously connect rites with the constitution.In the process of the reform movement of 1898 and the preparation of constitution in the late Qing Dynasty,rites and Constitution were the boundaries of each other.Constitution lost the acceptance of the traditional platform,and rites lost the historical opportunity of self-renewal.In the early period of the Republic of China,the debate about“Confucianism into the Constitution”not only failed to clarify the relationship between rites and constitution,but also deepened the opposition between rites and Constitution,thus tearing the social consensus.Since modern times,Constitution has not been the pursuit of values in China,but has become a tool for power competition.The tortuous relationship between rites and Constitution may be an important reason.