Update 7/15: Between the Two Constitutions

 

The two major primary documents I located, transcribed, and translated during my archival visit in Beijing were two Chinese constitutions promulgated in 1908 and 1911. The juxtaposition of these codes corroborates China’s political progression in the 1900s, when the country witnessed a constitutionalist reform initiated by the late-Qing regime. Represented democracy and separation of power are the keynotes of the two constitutions. Though the constitutionalism and the corresponding political reform failed to preserve the late-Qing regime, the later Nationalist republic in China inherited the essence of the 1900s reform. At this moment, I’d like to temporarily set aside the longstanding historical significance and concentrate on these two documents alone.

The comparison between the constitutions helps answer the following research questions:

  • Was the political reform in late-Qing China a constitutionalist modernization?
    • Yes, because the political reform produced two written documents that functioned as the state’s constitution. These sets of fundamental laws encouraged the rule of law and the spirit of democracy. The constitutions established modern political and bureaucratic systems and assured the separation of power. The reform also nurtured central and local legislative institutions that proliferated democratic ideologies.
  • What had been changed in the 1911 constitution compared to the 1908 codes?
    • The 1911 constitution was much more progressive and democratic than the 1908 codes. The later document, however, did not challenge the Qing Emperor’s absolute monarchy.
  • What was the historical significance of the two constitutions?
    • The 1908 and 1911 constitutions initiated political constitutionalism in China, therefore facilitating China’s political modernization.

The parallel analysis of these two documents cannot indicate their long-term political legacy. To determine the long-term impact, it requires cross-sectional analysis of late-Qing and Republican China’s constitutions.

 

Before elaborating on my interpretation, I want to clarify that the two documents did not hold the formal status as constitutions but were directories of a proper constitution for Qing China in its future. These two documents, nevertheless, did perform the function of state’s constitution once promulgated by the late-Qing regime. I thus regarded the two documents as “constitutions” because of their practical utility. The names of the two documents are the Principles of the Constitution and the Doctrines of the Constitution. The Qing China failed to witness the birth of its formal “Constitution”, since the republican revolutionaries overthrew the Qing regime soon after the publication of the 1911 constitution. These constitutions bare had the opportunity to modernize the Chinese society at once, but they helped to transform China’s politics and intellectual society in the long term.

The 1908 and 1911 constitutions are “modern” in the sense that they legally constituted the rule of law in China. China had acquired a legal system, but the laws were empowered by the rulers’ symbolic authority and the nominal legitimacy of “the mandate of heaven”. The late-Qing constitutions, for the first time in the Chinese history, established the rule of law through a set of written fundamental law. The two constitutions have the following principles in common:

  • Both documents symbolize the spirit of constitutionalism and establish the rule of law.
  • Both documents affirm the mandate of heaven as the Qing regime’s legitimacy. Neither documents try to challenge the political system of absolute monarchy.
  • Both documents demand the separation of power into the branches of legislation, executive, and judiciary.
  • Both documents guarantee the Qing emperor’s command of the military.
  • Both documents prioritize the leadership of the Zizhengyuan, as the state’s legislation, in facilitating the political reform.
  • Both documents guarantee the citizens’ equality in certain aspects, regardless of their ethnic and religious differences.
  • Both documents guarantee the citizens’ life, liberty, and property.
  • Both documents establish the due process of law, which offers citizens equality in the judiciary.

The two constitutions are distinguished from each other by the following major differentiations:

  • The 1911 constitution elevates the status of law above the emperor’s authority, therefore reiterating the principle of the rule of law.
  • The 1911 constitution guarantees democracy in the state’s legislation.
  • The 1911 constitution demotes the Qing emperor from the government’s leadership while preserving the emperor’s military command.
  • The 1911 constitution deprives the emperor’s ability to interfere with the state’s administration and legislation.
  • The 1911 constitution promotes cabinet as the new administrative system.
  • The 1911 constitution further consolidate the citizens’ liberties and rights.

 

The 1908 constitution has its formal name as the Principles of the Constitution. The late-Qing regime published this document in 1908 to mitigate the popular criticism of the absolute monarchy. While the intellectual community condemned the Qing regime for their mismanagement in foreign affairs, the Qing regime wanted to conciliate the public by limiting the Emperor’s power with a written legal document. This document appeared to be a partial compromise to the public demand by guaranteeing some citizens’ rights and restricting the sovereign’s prerogatives. The 1911 constitution is officially addressed as the Doctrines of the Constitution. The 1911 constitution was the regime response to the increasingly fierce protesting against the regime’s reluctance to reform. The late-Qing regime ceased much greater political authority to the legislation and the comparatively more independent cabinet, while offer more comprehensive assurance of the citizens’ liberties.

 

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