[author]Ma Xiaohong

[content]

Reflection on the Relationship between Rites and Constitutions in the Late Qing Dynasty and Early Republic of China: A Discussion on the Consensus of Ancient Chinese Society

Ma Xiaohong

Abstract: From the perspective of constitutional status and function, "ritual" undoubtedly had the status and role of "constitution" in ancient China, and the high social consensus in ancient China was formed with ritual as the core. At the end of the Qing Dynasty and the beginning of the Republic of China, when Western constitutional ideas and systems flooded in, from the perspective of historical development logic, Li Ben should have become the best choice to accept and replace the constitution. However, the social changes at that time deviated from this logic. When the Western constitution was introduced, the leaders who advocated transplanting the constitution and emulating the West failed to consciously link ritual with the constitution. In the process of the Hundred Days' Reform and the preparatory constitutional reform in the late Qing Dynasty, ritual and the constitution were mutually exclusive, and the constitution lost its traditional platform and ritual lost the historical opportunity for self-renewal. The debate over the incorporation of Confucianism into the Constitution in the early Republic of China not only failed to clarify the relationship between ritual and the Constitution, but also deepened the opposition between ritual and the Constitution, thus tearing apart social consensus. Reflecting on modern times, the constitution has never been able to become a pursuit of values as people wish during its introduction, but has instead become a tool for power struggles. The twists and turns in the relationship between etiquette and the constitution may not be an important reason for this.

Li is the mainstream value in ancient Chinese society, and it is the standard for people to distinguish between good and evil. It embodies a high degree of social consensus. In the changes of modern society, especially in the social turmoil and political changes of the late Qing Dynasty and early Republic of China, ritual faded out of its core position. According to the design of the leaders of the late Qing Dynasty and early Republic of China reforms, the imported constitution should naturally replace ritual and become a new consensus in modern Chinese society. However, the development of history is not subject to people's will. From the end of the Qing Dynasty to the period of the Republic of China, countrymen's understanding of the Constitution imported from the West has always been in a state of confusion. In terms of the cohesion of "social consensus", the Constitution is far from compatible with etiquette. Scholars mostly explain the unsatisfactory development of the Constitution in modern China from the content of the Constitution, believing that there is a lack of "constitutional factors" in traditional Chinese culture, such as democracy, rights, and checks and balances of power. Therefore, ritual and the Constitution cannot be mutually opposed. This explanation overlooks the interpretation of the laws governing the formation and development of the constitution itself - in my opinion, the neglect of the historical logical relationship between the constitution and ritual is the reason why the constitution's development in modern China has been unsatisfactory.

As is well known, a country's constitution, whether written or unwritten, rigid or flexible, is inevitably closely related to its historical traditions. By virtue of historical tradition, the constitution is able to embody the spirit of the nation, generate strong cohesion, and form a consensus among the nation and society. This consensus is the basis for all laws, even the legitimacy of the regime. That is why the Constitution is referred to as the 'mother law' or the 'fundamental law'. However, in the process of transplanting the constitution in modern China, the relationship between ritual, which best embodies the core spirit of Chinese tradition, and the constitution is like ice and fire, and cannot be compatible. Due to the opposition between ritual and the constitution, ritual, which should have played the most nurturing and nurturing role in the introduction of the constitution, has become a stumbling block to the continuation of the constitution. The development of the constitution in modern China, which has lost its traditional support, has been fraught with difficulties and challenges.

This article aims to start with analyzing the status and role of ritual in ancient Chinese society, reflecting on the consequences of ritual being ignored or even seen as an opposition in the process of transplanting modern constitutions, and arguing that the relationship between ritual and constitution should have been a gradual change rather than a historical development logic of either or, in order to teach the Fang family.

1. Li is the "Constitution" of ancient China

1.1 The Constitution is the condensation of social consensus

The use of the Constitution to characterize ancient Chinese "ritual" has some unavoidable aspects. During the process of the spread of Western learning to the East in modern times, ritual was interpreted in different legal contexts as "divine law," "customary law," "natural law," "constitution," "civil law," and so on. It should be acknowledged that this definition has been widely questioned and criticized by the academic community. Because 'ritual' is rooted in the soil of Chinese civilization, with its unique value pursuit and system structure. From this perspective, ritual is' ritual '. However, despite constant questioning, this ancient and modern' narrative 'approach is widely accepted by the academic community. Because when we want to study etiquette through modern legal studies, we cannot do without the interpretation and analysis of contemporary legal discourse. As Liang Qichao said a hundred years ago, "Society is becoming increasingly complex, and there are more and more studies that need to be governed. Scholars cannot specialize in classical studies like Qing Confucians; and the inherent heritage cannot be ignored. In the future, there will be a school of scholars who will use the latest scientific methods to separate and rectify old studies, extract their essence, preserve their truth, continue the unfinished thoughts of Qing Confucians, and further refine them, so that future scholars can not only save energy but also not fall into their predecessors; those who govern 'Chinese studies' in the world can also have a reason." Therefore, it should be pointed out that comparing rituals to the' Constitution 'proposed in ancient China is nothing more than modern people's understanding of ancient Chinese culture. The "disciplinary rectification" of history is a constitutional interpretation of ritual by contemporary scholars, which is far from the entirety of ritual, let alone its unique characterization.

To demonstrate the constitutional status of ritual in ancient China, it is necessary to first clarify the definition and characteristics of the constitution. The definition and characteristics of the constitution mentioned in this article are examined from the perspective of social status and function, that is, the constitution is the supreme "fundamental law" or "grand law" in the minds of the people, and is the basis of social consensus. That is to say, the most important type of law besides the three laws of "political law," "civil law," and "criminal law," as Rousseau put it: "This type of law is not engraved on marble or copper tables, but on the hearts of citizens; it forms the true constitution of the country; it gains new strength every day; when other laws age or disappear, it can revive or replace those laws, it can maintain a nation's creative spirit, and can unconsciously replace the power of authority with the power of habit." Because of the nature of this fundamental law, some jurists do not classify the constitution as ordinary law, but believe that the constitution is a law that a country has. The unique regulations of the highest status are the product that embodies and consolidates the spirit of a country or nation, and are the supreme law rooted in the hearts of the people, It is a manifestation of the highest values of a nation. Because it lives in people's hearts, it has the ability to 'replicate' and 'create', and can even replace outdated laws.

The legal historian Cheng Shude summarized the basis for the "illegal law theory" in the Constitution as follows: "(a) The establishment of the Constitution predates the law. (b) The law is based on sanctions as an element, while the Constitution is a law without sanctions, which is called a lack of elements. (c) In most countries in the Americas, the institutions that formulate constitutional laws are different from those that formulate ordinary laws. (d) Laws must go through parliamentary decision-making, while constitutional laws have not gone through this process." Although "the term Constitution is an ambiguous term in modern language," it is worth noting that both scholars who hold the "illegal law theory of the Constitution" and those who hold the "constitutional law theory" do not deny that the Constitution The effectiveness of the Constitution is higher than that of ordinary law and its nature as the supreme law and mother law in the legal system, which does not deny that the Constitution is a manifestation of national spirit.

1.2 Rites establish the "fundamental organization of the state" and have a "creative" role

Did ancient China have a constitution? If so, what exactly is it? Since the introduction of modern Western constitutional law, academic discussions on these two issues have mostly focused on the relationship between the state and the constitution. Chen Ruxuan believes that in a broad definition of the constitution, "China has never been without a government for a day in its history; there has been a government with its own organizational decisions and power distribution laws. The country has been established for five thousand years, and there has never been a day without a constitution." Wang Shijie and Qian Duansheng also believe that "the characteristic of the constitution is to regulate the fundamental organization of the country." From this essential characteristic, "China, like other countries, has always had its own constitution; this constitution has long been in the form of a written constitution. Although it is difficult to determine when China's written constitution originated, there has been a written form of constitution since the Tang Dynasty - the" Six Classics "promulgated during the Tang Kaiyuan era, which is this type of constitution. As is well known, the" Six Classics of Tang "formulated during the reign of Emperor Xuanzong of Tang was a copy of the" Zhou Li ", which is one of the classics of Confucianism, The book was written during the Spring and Autumn Period to the Han Dynasty, and is a posthumous record of the official system of the Western Zhou Dynasty. Although the content recorded in the Book of Rites may have been imagined by many later generations as a system of attachment, the establishment and responsibilities of the six officials of "heaven, earth, spring, summer, autumn, and winter" in it have been pursued and put into practice by successive dynasties for nearly a thousand years from the Qin and Han dynasties to the Sui and Tang dynasties. During the Sui and Tang dynasties, the six departmental system of officials, households, rites, soldiers, punishments, and workers under the central administrative agency of the Shangshu Province finally achieved the ideal of setting up government officials contained in the Book of Rites. Since then, this system has been used until the end of the Qing dynasty. The Book of Rites, the Six Classics of the Tang Dynasty, and later the Yuan Dynasty Regulations, the Great Ming Code, and the Great Qing Code are all part of the state's "organizational decisions and power distribution laws".

The historical development from "Zhou Li" to "Hui Dian" in the Ming and Qing dynasties demonstrates at least three characteristics of ritual: firstly, ritual is interconnected with ritual, and ritual is developed from ritual. It can even be said that ritual itself is a form of expression of ritual. Rites and rituals both conform to the characteristics of the Constitution, which do not rely on sanctions as an element, but rather are "laws without sanctions". Secondly, in the development of ancient Chinese society for thousands of years, ritual not only played a role in "replicating" and "replacing" other laws when they declined, but also had the ability to "create" them. Thirdly, from the perspective of the "essential characteristic" of the Constitution as the "fundamental organization of the state", there is no doubt that the "Constitution" of ancient China was ritual.

1.3 Ritual is a great law rooted in people's hearts and holds a supreme position

Not only that, the "constitutional nature" of ritual is also manifested in its "formal characteristics", which are higher than the effectiveness of ordinary laws. Although this formal characteristic is regarded by constitutional scholars as a "characteristic of modern constitution", in ancient Chinese society, ritual undoubtedly also had such characteristics, and the status of any law cannot be equated with ritual. In terms of legislation, etiquette is the purpose of the law; In terms of the system of law, ritual is the core of law; In terms of judicial practice, legal provisions that conflict with etiquette are often shelved, modified, or even abolished in practice. The "Spring and Autumn Annals" of the Han Dynasty, the "Introduction of Classics into Law" of the Wei, Jin, Southern and Northern Dynasties, the "One Accurate Method of Rites" of the Sui and Tang Dynasties, and the continuation of the "Tang Law" by the Song, Yuan, Ming and Qing Dynasties all reflect the ancient people's unwavering choice to prioritize ritual. The "Twenty Five Histories" record a large number of judicial stories about "breaking the law of justice", such as "The Biography of Filial Friends", "The Biography of Filial Piety", "The Biography of Exemplary Women", and "The Biography of the Wanderer". When the provisions of the law conflict with the principles of loyalty, filial piety, righteousness, and righteousness advocated by ritual, the law often opens up a way for filial sons and daughters, loyal ministers and servants, and chivalrous heroes and martyrs based on ritual, in order to promote the spirit of ritual and demonstrate the fundamental legal status of ritual.

Taking "The History of Ming Dynasty: Biography of Filial Piety and Righteousness" as an example. The filial sons Fu Ji, He Jing, Yu Zi, Zhang Zhen, Sun Wen, and others who were depicted as seeking revenge were all pardoned by the court. The He Jing case that occurred during the reign of Emperor Xiaozong Hongzhi of the Ming Dynasty (1488-1504) reflects the fundamental status of ritual as a "great law". He Jing's father was killed by the Supervisor of the County County. He Jing led dozens of relatives to crouch beside the road, intercepted the Supervisor of the County County and severely injured the Supervisor of the County County. The case was jointly tried multiple times by the Ministry of Justice, the Dali Temple, and the imperial censor. Beating officials by civilians is a serious crime of rebellion and should be punished according to the law. He Jing said when answering the judge's question "He beat the Supervisor of the County", "He Jing knew his father's revenge and Supervisor of the County's, but he didn't kill his ears." After finding out the truth of He Jing's revenge for his father, the justice department proposed to "garrison" and reported to the judge. Emperor Hongzhi approved the suggestion of the court and changed the hanging to a garrison. The "Biography of Filial Piety and Righteousness" in the "Draft History of Qing Dynasty" also recorded a revenge case that crossed dynasties. Li Fuxin, a Hubei native in the late Ming Dynasty, had his father robbed and killed by bandit Jia Chenglun. At that time, the world was in chaos and the law was not effective. Jia Chenglun was also numerous and powerful, so Li Fuxin had to pretend to be cowardly, which made Jia Chenglun have no intention of harming him again. During the Ming and Zuo dynasties of the Qing Dynasty, society was stable, and Li Fuxin went to the government to seek justice for his father. The government detained Jia Chenglun, but coincidentally, the emperor issued a general amnesty, and Jia Chenglun was pardoned and released from prison. Li Fuxin's revenge for his father was unsuccessful, and he felt unwilling. So he crouched by the roadside and killed his enemy Jia Chenglun with a stone. Later, he voluntarily surrendered to the government. The Supervisor of the County pitied his filial piety and wrote a letter to the state government asking Li Fuxin to forgive him for killing people, and praised him with "filial piety". Supervisor of the County said, "The Rites said that the parents' hatred will not be shared. It also said that the avenger should be written to the scholar, and he should be innocent of killing. The pardoner should be benevolent for a while, and the avenger should be righteous for thousands of years."

Placing etiquette above ordinary law is also reflected in the selection and examination of judicial officials in ancient society. The "Election Annals" of the Tongdian records a standard for selecting officials in the Tang Dynasty: "Without studying the classics and history, one cannot establish oneself, and without studying the legal system, one cannot serve effectively. After being selected as a juren, it is appropriate to study the law, and their judgments and inquiries should be based on current events and doubts, and they should be judged by the rules and regulations. They should not only follow the laws and regulations, but also the meanings of the classics, with a broad and elegant literary theory, and stand out from the crowd. Their judgments should be based on the legal system and reference to the classics and history, without any losses or shortcomings, and should be impressive and remarkable. Judging the law and having literary talent should be classified as the third class. For those who are proficient in the legal system, whether they can write directly or not, and whose reasoning is not lost even if they are not written, they are classified as Wait. In addition, it is not accepted." The "Jing" referred to here is the ritual that embodies Confucian thought; The "legal principle" and "reason" referred to are the legal propositions in Confucian classics. The standard for selecting officials in this way clearly places the principles of propriety and the legal principles that embody these principles above legal provisions.

In summary, whether in terms of formal or substantive characteristics, ritual had a position in ancient Chinese society that could be compared to the constitution, playing a role that could be compared to the constitution. From He Jing, who only "knew his father's hatred, but did not know the Supervisor of the County", to the official who pardoned Li Fuxin and praised him as a "filial martyr", all the people and officials placed ritual in the highest position of the law. From this perspective, during the influx of modern Western constitutional law, ritual should naturally become the best platform for accepting the constitution.

2. In the late Qing Dynasty, ritual and constitution were mutually exclusive domains

2.1 Li lost the opportunity to align with the Constitution in the rush of change

Using etiquette as a platform to accept Western constitutions, integrating Chinese and Western cultures, connecting ancient and modern times, and allowing Western constitutions to take root in China through the fusion and transformation of local culture - at the beginning of the large-scale contact between Chinese and Western cultures, it was not uncommon for people to advocate this. In books published in the 1840s that systematically introduced the knowledge and situation of various countries around the world, such as Wei Yuan's "Hai Guo Tu Zhi", Liang Tingnan's "Hai Guo Si Shuo", and Xu Jishe's "Yinghuan Zhi Lue", the Western parliamentary (parliamentary) system was introduced in detail. For example, Xu Jishe said: "In the British system, there were two people... There were guilds in the capital city, divided into two parts: one was the noble house, and the other was the gentry house. The noble house had noble titles and Western teachers; the gentry house had talented scholars selected by the common people." This is the earliest detailed description of the parliamentary system in China. The sentence is:. The "noble house" and "gentry house" were later translated as "upper house" and "lower house". Until the eve of the Hundred Days' Reform in 1896, Liang Qichao still wrote "An Examination of the Ancient Parliament", which examined the political system of ancient China from Confucian classics such as the Book of Changes, the Book of Documents, the Zhou Rites, the Book of Rites, and Mencius. He believed that in ancient China, especially before the Han Dynasty, "although there was no name for the parliament, there was actually one", "the law was the first king, and its meaning was the law". Although the name of the parliament did not exist in ancient times, it was intended to be relied upon by the ancient philosopher Wang to unify the world. The reason why the Western parliamentary system is first and particularly concerned by people is that it is very compatible with the ancient Chinese deliberative system. However, it is regrettable that this exploration of the integration path of Chinese and Western systems and the detailed excavation of the "similarities" between Chinese tradition and Western systems did not last long. As is well known, since the Sino Japanese War of 1894-1895, the demand for change in Chinese society has surged, and social change has also accelerated under the stimulation of the failure of the war. As a result, ancient traditions have become the target of criticism by modern people, and the proposition of Chinese scholars to "reinterpret classicism in response to new changes" and to integrate Western systems and concepts based on tradition as a platform or foundation is no longer seen in mainstream public opinion. Traditional rituals have lost the opportunity for transformation and renewal.

The historical opportunity for the renewal of etiquette has been greatly missed, as can also be seen from the hasty translation of "fundamental law" into "constitution". When it comes to the origin of the "Constitution", scholars generally look for chapters and excerpts from ancient Chinese classics to show that China already existed in ancient times. For example, in 1930, Chen Hanzhang wrote "A Study of Ancient Constitutions" and compiled "Mozi" in his writings to prove that the Xia Dynasty already had a "constitution". However, the meaning of the word "constitution" in ancient books is not only different from that of the Western constitution, but also vastly different in meaning. Chen Xiaofeng said, "There are many expressions in ancient Chinese classics such as' rewarding goodness and punishing evil, the constitution of the country ', among which the term' constitution 'does not have the meaning of fundamental law or legal source law, nor does it contain the content of power limitation and rights protection.' Although the constitution in ancient Chinese language has the meaning of 'law' and 'law degree', it is different from the so-called 'constitution' in modern times. During the Republic of China period, Cheng Shude raised objections to translating the English Constitution as "Constitution". Cheng Shude believed that the translation of the late Qing Dynasty's "Constitution" as "Yuefa" in the early Republic of China was in line with the "essence of the people's covenant" and was superior to the Constitution. The direct consequence of hastily translating 'Constitution' as' Constitution 'is to sever the connection between ritual and the Constitution, because in traditional Chinese expressions,' Constitution 'does not have the meaning of' fundamental law ', nor does it have the meaning of' agreement 'between the state and the people. It is difficult for people to link ritual with the constitution, and in the process of transplantation, the constitution lost the support of ritual as the fundamental law of ancient China. Not only that, the isolation of etiquette from the Constitution also pushed the mainstream value that Chinese people have advocated for thousands of years - etiquette into the opposite of the Constitution and was criticized, thus weakening the social consensus.

2.2 The highly social consensus centered on etiquette came to an end during the Hundred Days' Reform

The constitutionalism in the late Qing Dynasty went through two reforms: the Hundred Days' Reform and the "Preparatory Constitutionalism" led by the Qing court, which had a profound impact on modern China. This article does not intend to evaluate the success or failure of these two reforms, but only wants to explore the objective results and reasons for the mutual boundary between ritual and constitution brought about by them.

The Hundred Days' Reform, which aimed to establish a constitutional monarchy, was led by Kang Youwei, who failed to accurately understand Western learning (new learning) and lacked due respect for traditional learning (old learning). First, let's talk about the shortcomings of Western learning. Kang Youwei's understanding of Western learning and constitutional monarchy was almost entirely based on hearsay, which inevitably led to inherent deficiencies in his reform theory, reflected in his understanding of the constitution. In terms of interpreting the constitution, Kang Youwei arrogantly regarded Confucius as the founder of constitution making and the Spring and Autumn Annals as the constitution for "future generations of the world". He believed that "the constitutions of various countries today are being revised by everyone. The constitution of the Spring and Autumn Annals was being revised by one saint. The constitutions of various countries today are limited to one country and its time. The constitution of the Spring and Autumn Annals extends to future generations." This paragraph proves Kang Youwei's lack of basic knowledge of the constitution, as he did not know that the constitution was the law in the hearts of everyone and needed to be "revised by everyone. Kang Youwei once again said, "Confucius used the constitution of a commoner to demote the emperor and assassinate the feudal lords, so he could not write a book and orally taught his disciples. The teachings were passed down from teacher to teacher, waiting for future generations. Therefore, he waited for oral teaching to pass on. Today, Dong Zhongshu and He Xiu's oral teachings say that what is called an unwritten constitution?" Xiao Gongquan directly criticized this, saying, "This is an example of the Kang family's ignorance of the actual situation of Western politics and their far fetched attachment. Scholars call it the British Constitution. Its form and use have nothing to do with the subtle words in the Spring and Autumn Annals." Liang Qichao summarized the lessons of Western thought input in the late Qing Dynasty and said, "The movement of Western thought in the late Qing Dynasty was the most unfortunate thing. It covered Western students studying abroad and was almost non-existent. Everyone has never participated in this movement. The driving force and backbone of the movement are those who are not familiar with Western language and writing. Sitting here is limited by their abilities, and the drawbacks of being a peddler, fragmented, vague, superficial, and erroneous cannot be avoided. Therefore, after twenty years of physical activity, one cannot establish a solid foundation for death, and the ups and downs are neglected by society Furthermore, Kang Youwei's lack of respect for traditional learning. Kang Youwei made the sharpest criticism of Chinese tradition in history through the form of "reforming the ancient system". He wrote "Examination of New Learning and Pseudo Classics" and loudly called the Confucian classics passed down for two thousand years "pseudo classics", believing that the "mixture of truth and falsehood" of Confucian classics passed down since Liu Xin in the Eastern Han Dynasty was not reliable; The teachings of Confucius have been lost in chaos since the Eastern Han Dynasty and are not reliable. He also wrote "A Study of Confucius' Reform and Reform", portraying Confucius as a pioneer of reform and reform, and stating: "2376 years after Confucius' death, Kang Youwei read his (Confucius') last words, deeply pondering and grieving." This negated the academic inheritance after Confucius. Kang Youwei raised the banner of Confucianism and Confucius, not with the aim of "restoring" the old academic tradition, but rather with the intention of fundamentally negating China's traditional learning and paving the way for a comprehensive Western style reform and modernization. At that time, the representative figure of the conservative faction, Ye Dehui, pointed out sharply that Kang Youwei "first wrote the 'Fake Classics Examination' with the intention of disrupting the court's politics, and then wrote the 'Reform Examination'. His appearance was like that of Confucius, but his heart was like that of barbarians." Kang Youwei's reform of Confucius, especially his examination of Confucian classics, had great arbitrariness due to his political goals. He deliberately distorted Confucian classics to serve the reality of the reform, and people at that time thought it was a 'foreign study'. He was repeatedly 'ordered to destroy the version' by the court. Kang Youwei himself did not hesitate to say that the purpose of the reform he advocated was to "completely change" the old system and establish a "constitutional monarchy" country. Kang Youwei believed that reform was the only way to save the country, and that "no change" would lead to destruction, and "small changes" would also lead to destruction: "Observing the trend of all nations, if we can change, we will be complete; if we cannot change, we will be destroyed. If we change completely, we will be strong, but small changes will still be destroyed." In Kang Youwei's "total change" plan, there is no place for tradition and old learning to stand, and Confucius and Confucian classics are just political tools being used. No wonder Qian Mu criticized Kang Youwei's "respect for Confucius" during the Wuxu period in his book "A History of Chinese Scholarship in the Past Three Hundred Years" as a completely "fake play": "Those who 'overthrew the Kong family shop' led by modern people (in the early Republic of China) have the same view as those who respected Confucius by Changsu (Kang Youwei), and there is no major difference." Although the Wuxu Reform was carried out under the banner of Confucius, objectively it deviated from tradition and divided the consensus of traditional society, and the "constitutional" consensus that Kang Youwei fervently hoped to form was also not formed.

After the Hundred Days' Reform, terms such as "constitution," "constitutionalism," "constitution," "parliament," and "rights" became popular in society. However, the concept of propriety still had a widespread influence due to the strong inertia of tradition. In the same year of the Hundred Days' Reform, which was 1898, Emperor Guangxu "extensively reviewed" Zhang Zhidong, a high-ranking official of the court and leader of the Self Strengthening Movement, who wrote the "Persuasion of Learning" to oppose Kang Youwei's reform and constitutional monarchy. He highly praised Zhang Zhidong for his "fair and insightful views" and ordered the Prime Minister's Office to print 300 copies for distribution to officials and gentry in various provinces. As a result, the "Pe