My View on Constitutionalism

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This article was published first in the August issue of Yanhuang Chunqiu.

Wang Jianxun

Since a while, several articles criticizing constitutionalism have been published in newspapers and periodicals. This has not been seen often in the past one hundred years of history. Since the legal reform and constitutional establishment of the Late Qing, apart from the years of totalitarianism, a march towards constitutionalism has basically been the baseline consensus of the Chinese people.

As soon as the voices criticizing constitutionalism came out, they not only met with continuous and incessant repudiation, they also led to a dispute on various questions about constitutionalism in intellectual systems, and particularly do a debate between the “Socialist constitutionalist group” and the “universal constitutionalist group” (“pan-constitutionalist group”). This sort of debate on one hand gave prominence to the insufficiencies of the store of knowledge on constitutionalism in theoretical circles, and on the other hand revealed people’s different conceptions of realizing constitutionalism. In view of this, clearing up the true meaning of constitutionalism seems especially urgent in today’s China.

What does “constitutionalism” mean after all? Generally speaking, constitutionalism is a sort of institutional arrangement and ideological idea of limiting government power and protecting individuals’ fundamental rights and liberties. Constitutionalism also implies a sort of specific situation of governance, a situation in which a Constitution that limits power is effectively implemented – under this sort of situation, the power of government is effectively restrained, and the individual rights and liberties of individuals are protected well. The core of constitutionalism lies in limiting power, and hitherto, the most effective form of dividing power discovered in humanity is the separation of power, including horizontal separation of power and vertical separation of power. The former is also known as the “tripartite separation of powers”, meaning that the legislative power, executive power and judicial power are separate from each other and mutually balancing; the latter is also known as “federalism”, meaning that the national government and local governments are separate from each other and mutually balancing. There is no doubt that the separation of powers, checks and balances are the quintessence of constitutionalism. Their mechanistic role lies in the fact that they constrain power with power, or to use the words of the US “founding father” Madison, “use wild ambition to oppose wild ambition”. The arrangement of the separation of power, checks and balances ensures that no power is paramount, and ensures that all power is bounded, that it is restrained and opposed by other powers. Vertical separation of powers, checks and balances ensure that three powers that are different in nature mutually contain each other, vertical separation of power, checks and balances ensure that different governments mutually constrain each other. This sort of double separation of power, checks and balances can effectively restrain the exercise of power and prevent the abuse of power, providing a “double safety valve” (Madison’s words” for the protection of individual’ fundamental rights and liberties.

Constitutionalism opposes any form of dictatorship, that is to say, any form of dictatorship is intolerable to constitutionalism. The harm of dictatorship lies in the fact that it creates paramount and unrestrained power, regardless of whatever personalities or bodies exercise that power. Unrestrained power inevitably is arbitrary and subjective. Madison pointed out that all forms of concentrated power, regardless of whether it is concentrated in the hands of one person, some people or many people, regardless of whether it is hereditary, self-appointed or democratically elected, they can all appropriately be defined as authoritarianism. Tocqueville also once said: “unlimited power itself is bad and dangerous thing. […] In my view, when the power and means of command are entrusted with whatever force, regardless of whether this is called the people or a king, regardless of whether it is called an aristocratic system or a democratic system, regardless of whether it is called a monarchy or a republic, I will always say that this has sown the seeds of tyranny, furthermore, I will go and live elsewhere, and obey other laws.” It can be seen that even if a certain person or body has been produced by elections by the masses, it is not possible to entrust them with all power, and it is also not possible to let them concentrate all power into a single person.

Regardless of whether power is concentrated horizontally or vertically, there is always a tendency towards absolute and unrestrained power, constituting a grave threat to individual liberties and rights. Horizontal concentration of power means that the powers to formulate laws, implement laws and adjudicate cases is concentrated in the hands of one person or one body, not only is it impossible to correct the mistakes brought by any measure, but the establishment and use of norms are integrated with the tools of violence, this makes it hard to avoid that the exercise of power is reduced to tyranny, as Montesquieu feared. Vertical concentration of power means that all power in a community is concentrated in the hands of one government, and that there are no other forces that can prevent its abuse, local self-government declines, and local freedoms vanish.

The essential point of constitutionalism is limited government. This means that the power of government is bounded and its exercise is strictly limited, furthermore, it makes the protection of individuals’ fundamental rights and liberties into an objective. The power of this sort of government is not inborn or God-given, but it comes from the members of the community, it comes from every individual, and comes from being empowered by them. Therefore, its objective, even its only objective, is the protection of individual liberties and rights. Government does not have – and should not have – any interest that is independent from individuals, everything it does is no more than protecting individuals’ interests.

In broad terms, constitutionalism is a way of life. Constitutionalism guarantees people’s freedoms and peaceful coexistence, it guarantees that people can rationally discuss and interact, and it guarantees that people can constructively resolve disputes. Constitutionalism protects individuals’ fundamental rights and liberties to the broadest extent, and guarantees that people can reach a consensus about peaceful coexistence on this basis, in other words, constitutionalism respects individual values and choices to the broadest extent, and on this basis, it guarantees that they can build peaceful public lives. Constitutionalism appropriately integrates the individual with society, and appropriately blends freedoms and order together, it clearly separates the private sphere from the public sphere, and ensures that thousands of complicated ties and links are maintained. In a constitutional society, individuals are free, but live under the precondition that they do not harm others’ freedoms and rights, the “principle of no harm” that Mill put forward; at the same time, individual liberties are also not harmed by public power, and the exercise of public power must be based on protecting individual liberties and rights.

After clarifying the meaning of constitutionalism, it is not difficult to discover the basis for the anti-constitutionalists’ viewpoints, they believe that constitutionalism is capitalist, and China implements Socialism, therefore China should not do constitutionalism. Their logic is, the institutional elements of constitutionalism is the private ownership system, parliamentary democracy, the separation of powers, judicial independence, constitutional review, federalism, etc., and these are completely opposite to the public ownership system, people’s congress system, integration of legislative and executive power, a judiciary that is subject to the Party’s leadership, etc., as practiced in Socialism. Frankly speaking, the anti-constitutionalists’ views are not completely without merit, in fact, in terms of the comparison between both that they make, their views are largely valid, because a fundamental difference exists between Stalin-style Socialism and the basic ideas of constitutionalism, and an affinity actually exists between constitutionalism and capitalism. The mistake of the anti-constitutionalists is that they embrace Stalin-style Socialism and do not let it go, and refuse constitutionalism and capitalism. Their viewpoints can be described in one sentence: “We prefer the grass of Socialism, and do not want the seedlings of capitalism.”

Looking back at the basic propositions of Stalin-style Socialism, it is not difficult to find that its contradictions with constitutionalism seem irreconcilable. Staling-style socialism believes in publicly owned property rights (the public ownership system), the planned economy (the command economy), interference in contracts, etc., and these matters are all opposed to constitutionalism. Publicly owned property rights weaken and even destroy individual autonomy and liberty, because the material basis on which people rely to live and act in peace is destroyed; the planned economy means that individual free choice is gravely limited or even completely deprived, the government controls individuals’ fates through planning, making them become chess pieces that can be manipulated at will.

Some people say that Stalin’s model of Socialism was only a kind of economic structure, which absolutely could coexist with constitutionalism. This sort of view does not have a leg to stand on, even if Stalin’s model of Socialism is only seen as a kind of economic structure, its antagonistic relationship with constitutionalism is extremely clear. Socialism in the sense of economic structures was aimed at controlling people’s economic lives and controlling the production of products and wealth. But as the writer Hilaire Belloc said: “Controlling the production of wealth is controlling humanity’s lives themselves.” That is to say, controlling wealth or economic life is equal to controlling everything, and controlling every aspect of people’s lives. Hayek put it very clearly: “economic control is not only control over a part of human life – a part that can be separated from other parts; it is control over the means to realize all of our objectives. Whoever has the sole power of control over these means, inevitably decides which purposes they will serve, decide what kinds of values are put in front, and which values are put at the back, and decide what people should believe as well as why to fight.” The situation before China’s reform has proven the reliability of this argument. However, the thing reformed during China’s reform and opening up was Stalin-style Socialism, and one of the objectives of reform and opening up was that “The Party must act within the scope of the Constitution and the law”, this point is the basic proposition of constitutionalism. In a constitutionalist society, all political parties must really conduct their activities under the Constitution and the law.

 

宪政之我见
王建勋
近一段时间以来,报刊上登载了数篇批评宪政的文章。这在过去百年历史上并不多见。自清末变法立宪以来,除了极权年代之外,走向宪政基本是国人的底线共识。
批评宪政的声音一出,不仅遇到了连绵不断的反驳,而且引起了知识界对宪政诸问题的论争,尤其是“社宪派”(“社会主义宪政派”)与“普宪派”(“泛宪派”)之间的论战。这种争论,一方面凸显了理论界宪政知识储备的不足,另一方面展现了人们对实现宪政的不同设想。鉴于此,澄清宪政之真义,在当下之中国显得尤为迫切。
“宪政”究竟意味着什么?概而言之,宪政是一种限制政府权力、保护个人基本权利和自由的制度安排和思想观念。宪政也意味着一种特定的治理状态,一种限权宪法得到有效实施的状态——在这种状态下,政府的权力受到有效制约,个人的基本权利和自由受到良好的保护。宪政的核心在于限制权力,而迄今为止,人类发现限制权力的最有效方式就是分权,包括横向的分权和纵向的分权。前者亦称“三权分立”,意即立法权、行政权和司法权之间各自分立并相互制衡;后者亦称“联邦主义”,意即全国性政府和地方政府各自分立并相互制衡。
毫无疑问,分权制衡是宪政的精髓。其作用机理在于以权力制约权力,或者,用美国“宪法之父”麦迪逊的话说,“用野心对抗野心”。分权制衡的安排使得任何一种权力都不是至高无上的,使得任何一种权力都有边界,并受到来自其他权力的制约和对抗。横向的分权制衡使得三种不同性质的权力之间相互牵制,纵向的分权制衡使得不同的政府之间互相掣肘。这种双重的分权制衡可以有效地约束权力的行使和防止权力的滥用,为个人基本权利和自由的保障提供一种“双重安全阀”(麦迪逊语)。
宪政反对任何形式的集权,或者说,任何形式的集权都与宪政不容。集权的危害在于,造就至高无上、不受约束的权力,不论行使权力者是什么样的人物或者机构。不受约束的权力必然是任意和武断的。麦迪逊指出,所有形式的集权,不论是集中在一个人、几个人还是许多人手里,不论其是世袭的、自命的还是民选的,都可以被恰当地定义为专制。托克维尔也曾说:“不受限制的权力本身就是一个糟糕而危险的东西。……当我目睹绝对命令的权力和手段赋予任何力量时,无论它被称为人民还是国王,无论它被称为贵族政体还是民主政体,无论它被称为君主国还是共和国,我都会说,它播下了暴政的种子,并且,我将到别处去生活,服从其他的法律。”可见,哪怕某个人或者机构是由民众选举产生的,也不能赋予其所有的权力,也不能让其集所有权力于一身。
无论是横向的集权还是纵向的集权,都倾向于导致绝对的、不受约束的权力,构成对个人自由和权利的严重威胁。横向的集权,将制定法律、执行法律和裁决案件的权力集中在一个人或者一个机构手里,不仅无法纠正任何一步骤带来的错误,而且将确立、适用规则与暴力机器结合在一起,权力的行使难免沦为暴政,正如孟德斯鸠担心的一样。纵向的集权,将一个共同体中所有的权力都集中在一个政府手里,没有其他的力量能够防止其滥用,地方自治将式微,地方自由将消失。
宪政的要义在于确立一个有限政府。它意味着政府的权力是有边界的,其行使受到严格的限制,且以保护个人的基本权利和自由为目的。这种政府的权力不是天生的或者神授的,而是来自于共同体的成员,来自于每一个个人,来自于他们的授权。因此,其目的甚至唯一目的,就是保护个人的自由和权利。政府没有——也不应当有——任何独立于个人之外的利益,它所做的一切都不过是为了保护个人的利益。
从广泛的意义上讲,宪政是一种生活方式。宪政确保人们自由而和平地共处,确保人们理性地对话和交往,确保人们建设性地解决纷争。宪政最大限度地保护个人的基本权利和自由,并在此基础上确保人们达成和平相处的共识,或者说,宪政最大限度地尊重个体的价值和选择,并在此基础上确保他们构建和平的公共生活。宪政将个人与社会恰当地结合在一起,将自由和秩序妥善地交融在一起,将私人领域与公共领域清晰地区分开来,又使它们保持着千丝万缕的联系。在宪政社会里,个人是自由的,但以不损害他人的自由和权利为前提,正如约翰·密尔提出的“不伤害原则”;同时,个人的自由也不受公共权力的侵害,公共权力的行使须以保护个人的自由和权利为依归。
廓清宪政的涵义之后,便不难发现反宪派的观点的依据,他们认为宪政是资本主义的,而中国实行社会主义,所以中国不应当搞宪政。他们的逻辑是,宪政的制度元素是私有制、议会民主、三权分立、司法独立、违宪审查、联邦制等,而这些与社会主义实行的公有制、人大制度、议行合一、司法受制于党的领导等截然对立。坦率地说,反宪派的看法并非完全没有道理,实际上,就他们所作的二者之间的对比而言,他们的看法大抵站得住脚,因为斯大林模式的社会主义与宪政的基本理念之间的确存在着根本区别,而宪政与资本主义之间的确存在着亲和性。反宪派的错误之处在于,他们抱着斯大林模式的社会主义不放,拒绝宪政和资本主义。他们的主张可以用一句话来形容:“宁要社会主义的草,也不要资本主义的苗。”
反观斯大林模式的社会主义的基本主张,不难发现,它与宪政之间的矛盾几乎是不可调和的。斯大林模式的社会主义信奉产权公有(公有制)、计划经济(命令经济)、契约干预等,而这些都是宪政所反对的。产权公有削弱甚至摧毁了个人独立和自由,因为个人赖以安身立命的财产基础遭到破坏;计划经济意味着个人的自由选择受到严重限制甚至被完全剥夺,政府通过计划掌控着个人的命运,使其成为一个可以任意摆布的棋子。
有人说,斯大林模式的社会主义只是一种经济制度,与宪政完全可以共存。这种看法站不住脚,即使将斯大林模式的社会主义仅仅看成一种经济制度,它与宪政之间的对立关系也十分明显。经济制度意义上的社会主义旨在控制人们的经济生活,控制产品和财富的生产。但正如作家希莱尔·贝洛克(Hilaire Belloc)所言:“对财富生产的控制就是对人类生活本身的控制。”也就是说,控制了财富生产或者经济生活,就等于控制了一切,控制了人们生活的方方面面。哈耶克说得很明确:“经济控制不只是对人类生活一部分——该部分可与其他部分分离——的控制;它是对实现我们所有目的之手段的控制。无论谁拥有对这些手段的唯一控制权,也必然决定它们服务于何种目的,决定何种价值排在前面、何种价值排在后面,决定人们应当相信什么以及为什么而奋斗。”中国改革前的状况验证了这种说法的可靠性。
但是,中国改革开放所改革的对象,正是斯大林模式的社会主义,改革开放的目标之一,正是“党必须在宪法和法律的范围内活动”,而这一点,又是宪政的基本主张。在宪政社会里,所有的政党都必须事实上在宪法和法律之下进行活动。

(作者为中国政法大学副教授)

(责任编辑 黄 钟)

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