论钱端升的宪政观

发布时间：2018-04-12 11:29

本文选题：宪政 + 民主　；参考：《西南政法大学》2011年硕士论文

【摘要】：自清末以来,近代中国进入转型时期,我国社会不断进行政治结构改革的尝试,同时在思想领域,人们认识到中国传统的儒家文化已经不能适应社会的发展,西方国家的先进是因为他们拥有以民主、科学为主导的文化。随着一批知识分子留学归来,把西方的政治制度引入到中国,特别是宪政制度,钱端升就是其中的一员。他早年留学美国,对西方的政治法律制度比较熟悉,他满怀热情投入到中国社会的改革,却并没有完全照搬西方模式,而是积极探索符合中国国情的道路。钱端升把西方的宪政观念传播到中国,关注人民的权利,主张在宪法中加以规定。在人治与法治的之间,主张中国应实行法治,但他更明白法治不是一蹴而就的,有了宪法不代表就有了宪政,制定了法律并不意味着就是法治社会。法贵乎行,中国当时的社会还不具有实施法律的环境,宪政是中国社会的努力方向,但在当前应该做的并不是急于立宪,而是创造实现法治需要的条件,将政府的行为方式制度化,培养法律人才等,逐步实现法治。在民主与专制的论战中,深受西方民主思想影响的钱端升,却一反常态,提出新式独裁论。在他看来,在国难当头之际,应该集中力量,加强经济建设,抵御外侮,而独裁制度有利于这一目的的实现,但这也只是非常时期的过渡政体。在国家渡过危难之后,还是应该按照孙中山规划的三个时期,逐步走向宪政。其独裁论受到美国实用主义思想的影响,并与当时国际时局有关。在二十世纪30年代的制宪活动中,钱端升提出了暂缓制宪论,他认为无论是从国民党的立场,还是从普通国民的立场来看,都不急于制定宪法,政局不稳,人民无参政能力,即使制定了宪法也难于执行,损害了法律的尊严,并无其它实际的益处。在制宪成为定局的情况下,他提出了制宪的几点原则,对于今天宪法的制定与修改仍有借鉴意义。对于已经出台的宪法草案,他在人权保障、国家政体等方面提出修改意见。钱端升虽然留学西方,却摆脱不了传统士大夫的精神,以学议政,努力寻求将西方宪政制度本土化的道路,他以一个学者忧国忧民的胸怀,同时又站在一个独立客观的立场上,密切关注现实社会的动态,提出批评建议,不畏强权,希望能为中国的政治改良尽一份力,争取早日在中国实现民主法治社会。
[Abstract]:Since the end of Qing Dynasty, modern China has entered a period of transition, and our society has been trying to reform its political structure. At the same time, in the ideological field, people have realized that the traditional Confucian culture in China has been unable to adapt to the development of society.Western countries are advanced because they have a culture dominated by democracy and science.Qian Duansheng was one of the intellectuals who came back from abroad and introduced the western political system into China, especially the constitutional system.In his early years, he studied in the United States and was quite familiar with the western political and legal system. He devoted himself enthusiastically to the reform of Chinese society, but instead of copying the western model completely, he actively explored the road that was suited to China's national conditions.Qian Duansheng spread the idea of western constitutionalism to China, paid attention to the rights of the people, and advocated that it should be stipulated in the constitution.Between the rule of man and the rule of law, he advocates that China should implement the rule of law, but he understands more clearly that the rule of law is not achieved overnight. Having a constitution does not mean that there is constitutional government, and making laws does not mean that a society ruled by law is a society ruled by law.China's society at that time did not have the environment to enforce the law. Constitutional government was the direction of Chinese society's efforts, but what should be done at present was not to rush to establish the constitution, but to create the conditions needed to realize the rule of law.Institutionalize the government's behavior, train legal personnel, and gradually realize the rule of law.In the controversy between democracy and autocracy, Qian Duansheng, deeply influenced by western democratic thought, put forward a new autocracy.In his view, at the time of the national crisis, we should concentrate our efforts on strengthening economic construction and resisting foreign aggression, and dictatorship is conducive to this end, but it is only a transitional regime in an extraordinary period.After the country passes through the crisis, it should follow the three periods planned by Sun Zhongshan, step by step towards constitutionalism.His autocracy was influenced by American pragmatism and related to the international situation at that time.In the constitution-making activities of the 1930s, Qian Duansheng put forward the theory of suspending constitution-making. He believed that neither from the standpoint of the Kuomintang nor from the standpoint of the ordinary people, they were in no hurry to formulate a constitution, the political situation was unstable, and the people had no ability to participate in politics.Even a constitution is difficult to enforce, undermines the dignity of the law and has no other practical benefit.In the case of constitution-making becoming a certainty, he put forward several principles of constitution-making, which still has reference significance for the formulation and revision of constitution today.He has proposed amendments to the draft constitution in terms of human rights protection, state government, and so on.Although Qian Duansheng studied in the West, he could not get rid of the spirit of traditional literati officials, studied and discussed politics, and tried hard to find a way to localize the western constitutional system. He took the mind of a scholar who was worried about the country and worried about the people, and at the same time stood on an independent and objective stand.Pay close attention to the development of the real society, put forward the criticism and suggestion, do not fear the power, hope can make a contribution to the political improvement of China, strive to realize the democracy and rule by law society in China as soon as possible.
【学位授予单位】：西南政法大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D909.2;D921

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