Chapter 20 From limited government to constitutional government

How to limit and regulate power so that the established government does not degenerate from a "necessary evil" to an "inevitable evil" has always been the focus of attention of the world.It is obvious that today's China, which is striving for constitutionalism, wants to bid farewell to the old stereotypes and obtain a promising prospect, everything must start with the continuous restriction and control of power. When it comes to power checks and balances, when it is said that human beings have gained a lot for hundreds of years, the most representative checks and balances are the following two ways:

One is "power to restrict power" represented by Locke and Montesquieu.The former believes that since the state is a "necessary evil", it should "separate the two powers" and separate the legislative power from the executive power; . Although the theory of separation of powers originated from the Enlightenment thinkers in England and France, it was the Americans on the other side of the ocean who completed system innovation and established a government based on it. The Constitution of the United States of America, which was passed by the Constitutional Convention in September 1787 and ratified by nine states in June of the following year, was the first written constitution in the world, and it remains the foundation of the United States until today.The so-called institutional innovation is manifested in the fact that the pioneers of the United States Constitution added the content of vertical decentralization of federal and state governments to the decentralization system based on the fact that only a federal state could be established at that time; at the same time, when designing the internal decentralization mechanism of the central government , also abandoned Locke and Montesquieu's idea that the executive power was subordinate to the king, and instead delegated the administrative power to the indirectly elected president.This constitution has carefully designed a set of vertical and horizontal decentralization measures, through the vertical decentralization of the federal government and the state government and the horizontal decentralization of the federal government's internal legislative, administrative and judicial departments to limit the government's authority and restrict government behavior.

The second is Gundance's "right to restrict power".Gundans was famous for proposing the "five powers" - including a hereditary parliament, an elective parliament, a neutral crown, executive and judicial powers.After witnessing the massacre of the French Revolutionary National Convention because of its monopoly of executive, judicial and legislative powers, Gundance realized that Rousseau's mistake as the source of the French Revolution's thought was that his "contract theory" made everyone Reservations transfer all their rights to the community (state), thinking that they will gain everything when they lose everything.In reality, however, the collective creation of these unarmored peoples by revealing themselves is nothing more than a power that can take everything from them with little effort.There, Robespierre, a humanitarian who once advocated the abolition of the death penalty, also turned into a murderous revolutionary, and in the end he himself was inevitably sent to the wet guillotine on the Place de la Concorde.

Therefore, while Gundance put forward the idea of ​​"constraining power with power", he added the idea of ​​"constraining power with rights", that is, it must be recognized that citizens have some basic rights that cannot be taken away by any power, in order to prevent the people we often refer to today. The "tyranny of the few" and "tyranny of the majority". In his view, once the sovereignty is not limited, individuals will have nowhere to escape from the government. "There is no unlimited power in the world... Citizens have personal rights independent of any socio-political power, and any power that violates these rights becomes illegal. The rights of citizens are personal liberty, freedom of religion, and freedom of expression, including Freedom of public expression, enjoyment of property, and security against all arbitrary power." (Gondans, "The Liberty of the Ancients and the Liberty of the Moderns") Simply put, when man makes a contract with society and forms a state, he does not assigns all its rights.As Henry Thoreau said: "We are men first, and citizens second."

The third is Tocqueville's "restricting power by society".After examining American democracy, Tocqueville also found that Montesquieu's separation of powers was not enough to guarantee a society's democratic freedom, so he proposed a social check and balance mechanism, and regarded freedom of association as a bulwark against government power.In "On Democracy in America", Tocqueville believes that "a pluralistic society composed of various independent and autonomous associations can constitute a social check and balance on power". In his opinion, if there is no association Freedom is to prevent the dictatorship of political parties or the dictatorship of big men, and build a dam to prevent tyranny. "A great nation will either be cruelly oppressed by a small group of scoundrels, or it will be cruelly oppressed by a single husband."

If the reader is careful, it is not difficult to find that from Montesquieu, Gundance to Tocqueville, they imply two forms of separation of powers; one is the separation of powers within the state power advocated by Montesquieu ; One is the "separation of powers" between state power relative to individual rights (Gondans) and social rights (Tocqueville), that is to say, the separation of power boundaries between the state, society and individuals.If what Montesquieu pursues is the self-purification within power, then what Gundance and Tocqueville want to accomplish is the resistance of the individual and society against the state (government) based on rights, and the return of the individual and the social system. The initiative of power.And this is the theoretical source of modern civil society.

In Locke's view, "Natural reason tells people to form a country through contracts, and the power of the state comes from the natural rights granted by people. People lose part of their natural freedom and gain social freedom." However, an unavoidable fact is that during the reform and opening up For quite a long time before, both individuals and society were overwhelmed by power.After China completed the "socialist transformation of agriculture, handicrafts, and capitalist industry and commerce" in 1956, the economy and society were wiped out.When the power of the party and government penetrates into every corner of society, even the ancient and basic social unit of the family in China is already in jeopardy.Not to mention that husbands and wives turned against each other because of class struggle at this time, and the "Great Leap Forward" even confiscated the right of many people to cook at home.But this kind of "big pot meal" is offensive. Members are only allowed to eat in the collective cafeteria, and the big iron pots used by each family must be handed over to the brigade to smash the steel.

China's economic and political systems are built on the basis of Lenin's model, and according to Lenin's understanding in "The State and Revolution", the whole society is nothing but a "state syndicate", the government is the chief executive of this large state monopoly company, and all citizens became an employee of the state.Obviously, this kind of centralized system design binds all citizens to the chariot of the state, and prevents the society from "self-employment to make a living" and the chance to escape when disaster strikes. With the advent of reform and opening up, people have gradually realized that the key to China's transformation lies in how to gradually realize economic freedom and political democracy, and the reform and opening up first pointed to the limitation and decentralization of power, and to change the chronic disease of "replacing government with the party". .In the book "Market Economy Calling for the Rule of Law", the famous economist Wu Jinglian mentioned Deng Xiaoping's "political restriction thinking" in this way:

The chief architect of China's reforms pointed out the direction for "government restriction".Although in Wu Jinglian's opinion, "Unfortunately, after twenty years, the understanding of these issues is still not unified, and the problems have not been resolved."But it is undeniable that China's road to decentralization and government restriction that began in the late 1970s is still progressing day by day, with its own unique rhythm and method.All of this first benefited from the slow transition from a politically planned economy to a market economy ruled by law, and from the continuous liberation of individuals and society from the "unified" state system.

This kind of emancipation is firstly the departure of individuals from the state system, gradually regaining the inalienable and deprived rights as Gundance said; secondly, individuals gather in society, and to a certain extent complete the association in the sense of Tocqueville free.Of course, this is above all just economic freedom of association - forming a business. Speaking of freedom of association in the economy at the beginning of the reform, Wu Jinglian, who is familiar with China's reform, once talked about a "ridiculous" detail.After the realization of rural privatization in the 1980s, some experts proposed to legalize private enterprises in cities.The first one that worked was Professor Lin Zili of the research institution of the Central Committee of the Communist Party of China. He used a method that now seems ridiculous, citing a calculation example in the first volume of "Das Kapital", saying that as long as the number of employees employed does not exceed eight Individuals, employers are self-employed laborers rather than capitalists.Therefore, starting in 1983, enterprises employing less than eight people are called self-employed enterprises, which are allowed to exist and develop.

Of course, the backside of this "ridiculousness" is respectable.It embodies the wisdom and determination of how people racked their brains and persevered to break through the old system bit by bit in an era of "crossing the river by feeling the stones".And it is the growth of these "ridiculous" things that gradually constitute the restriction and decentralization of political power in today's Chinese economy and society. On this point, Jiang Ping, a jurist, has never been stingy about his positive evaluation of the market: the market economy and democratic politics are inseparable, and the market economy itself contains democratic politics, or the market economy itself promotes democratic politics.The market emphasizes the equality of subject status, which must include the elements of equality; the market emphasizes autonomy of will, which is naturally inseparable from the freedom of contract;Equality, freedom and human rights are the implicit political demands of a market economy.In fact, the most resounding anti-corruption slogans in the 1980s, such as "Down with officials," reflected a struggle for power restriction, rather than an ideological battle for driving out the market. A consensus has been reached since the reform that the market economy is about the rule of law rather than ideology.There is no distinction between capitalism and socialism in the market, only true and false.Without the rule of law, there will be no real market economy, and advocating a market economy is advocating an economy ruled by law.And once it is recognized that the market economy is an economy ruled by law, it is not difficult to understand that a real market economy will lay the foundation stone for China's future constitutional government through government restriction and decentralization. "Money is the root of all evil" is undoubtedly a slander against money.Don't you see, the incomparably rich Microsoft not only brought excellent software to the world, but also contributed a great philanthropist to the world.Looking back at all the tragedies in human history, perhaps the real conclusion should be "unfettered power is the root of all evil".The most powerful constraint on power and the most powerful guarantee for society is the enforceable rule of law.As Locke said: "The purpose of law is not to abolish or restrict freedom, but to protect and expand freedom. This is because in all human states that can accept the rule of law, where there is no law, there is no freedom." ("Government Argument") Power is "prohibited without legal authorization", and right is "freedom without legal prohibition".Obviously, what the rule of law needs to regulate is all aspects of the state and society, including the market economy, private life, and government behavior.In terms of power, if we want to change the governing thinking of some government departments that are self-authorized and manage everything, we must continue to limit the power of the government and demand that the rule of law be fulfilled. To fulfill the rule of law, there must first be laws to abide by.It is undeniable that since the reform and opening up, China has introduced many laws to regulate government behavior. public law.In the past two decades, several separate administrative laws aimed at restricting public power have been promulgated one after another. In 1989, the "Administrative Litigation Law" was promulgated and implemented. This was China's first administrative separate law, which made the concepts of "people sue officials" and "administrative procedures must be legal" implemented at the legal level and gradually became popular; In 2003, the "Administrative Licensing Law" aimed at "disorderly approval" was implemented; in 2004, the "Administrative Compulsion Law", which was called the third "shrunk" of the government's administrative power in ten years, was implemented.Legal experts pointed out that the promulgation of the above-mentioned separate law has actually incorporated most of the administrative power into the legal framework, and the "Administrative Procedure Law" as the basic administrative law is about to come out. The final promulgation of the law will mark the basic perfection of China's administrative law system.In addition, in terms of regulating power, several laws such as the Legislation Law, the Civil Servant Law, and the Anti-Monopoly Law have been promulgated one after another. private law.In the past, China was a society centered on the public law order. The reform of public ownership in the mid-1950s and the subsequent "three red flags" almost made the concept of "private property" disappear from the land of China.Today, with the growth of social wealth and the increase of people's awareness of rights, the call for private law legislation is getting louder, and the "Civil Code" as a declaration of rights is also brewing.In the words of Jiang Ping, a jurist, "private law must compete with public law for territory and demand protection, which also includes guarding against the threat of public power to the private sphere." At the same time, the revision of the constitution also took part in this power restriction movement.For example, in 2004, "Human Rights Incorporated into the Constitution" and "Private Property Incorporated into the Constitution" adhered to the constitutional idea of ​​protecting citizens' rights and limiting public power, and were regarded as a milestone in China's constitutionalism. However, power restriction is a systematic project after all, and the personal corruption, organizational corruption, and power expansion of some government officials will not stop abruptly because of the existence of the Constitution and the promulgation of several laws.For example, after the implementation of the "Administrative Licensing Law" on July 1, 2004, the number of substantive approvals has increased unabated compared with a few years ago; after the "Property Rights Law" took effect, "bulldozer politics" that ignore civil rights is still prevailing everywhere.What is even more ironic is that on August 1, 2008, the "Anti-Monopoly Law", known as the "economic constitution" after 14 years of tempering, was officially implemented.However, according to members of the drafting team of the Anti-monopoly Law, it was planned to formulate more than 40 supporting rules before August 1, 2008 when the draft was drafted, "so far, none of them have been issued."Just like the "Bankruptcy Law" that "went bankrupt as soon as it was promulgated", the "Anti-Monopoly Law" that was called by the media as "died before it was launched (unable to implement it)" was the first thing it encountered after the promulgation of the "Bankruptcy Law". non-violent non-cooperation". The constitution is a list of civil rights, the most important thing is to make it not become the biggest "rights white note". From the perspective of political civilization, the Constitution, which is guided by the spirit of restricting public rights and protecting civil rights, is worthy of being the greatest invention in human history.Looking back at the history of China for more than 2,000 years, and reflecting on all the efforts of the Chinese people today, it is not difficult to find that the history that China has completed and will complete is a history from "winning government" to constitutional government. As we all know, Yingzheng is the name of Qin Shihuang.The so-called "win politics" in this article refers to the "great unification" autocratic politics created by Qin Shihuang.Some people may say that Qin Shihuang strongly advocated that "everything depends on the law", which is somewhat of a "rule of law" spirit.This kind of thinking is really too sentimental about history, because Qin Shihuang also advocated that "everything in the world depends on the above", and he regards himself as the embodiment of "law", seeking the trinity of rulers, judges and legislators.Therefore, the "rule of law" in the Yingzheng era is nothing more than a "high degree of autonomy" with "complex punishments and severe punishment"-the emperor himself has the final say on this world.That's why there are "Law of Liar", "Order of Burning Books", "Order of Holding Books", "Law of Defamation" and other severe punishment laws that restrict freedom of thought.Qin Shihuang was the first emperor of absolutism. Since then, all dynasties have been vying to "learn from good examples of winning politics", not seeking to last forever, but seeking to have it today. Compared with the centralization of "retirement", constitutionalism advocates "constitutional centralization", and the constitution must come from the general will.Obviously, based on people's understanding of history at the time, what constitutionalism and "yingzheng" expressed were actually the two extremes of good and bad politics.A country in a period of transition is, in the final analysis, in the middle of changing from bad to good, from "regime rule" to constitutional rule.For more than a hundred years, Chinese society has changed from closed to open, from traditional to modern. Although there have been ups and downs and even retrogression during the period, constitutionalism has finally been aspired by the people, and China is approaching a bright and promising pole. At the end of the nineteenth century, with the brewing and launching of the Chinese bourgeois reform movement, Montesquieu's constitutional theory of separation of powers began to spread in China.Kang Youwei, Liang Qichao, and Yan Fu all clearly put forward the idea and method of the reform of separation of powers.Sun Yat-sen also created the "Five Powers Constitution" under the influence of Oufeng Meiyu, adding the power of examination and impeachment to the three powers of legislation, judiciary and administration.It is worth mentioning that, in order to implement the "Constitution of Five Powers", Sun Yat-sen designed a road of constitutional government of "military administration, political training, and constitutional administration" for the Chinese.Unexpectedly, those in power later became addicted to "political training" in the primary stage of democracy, and forgot that there was a third stage of constitutional government, until they were finally driven away by a group of "anarchists" and ushered in the "final stage". Hastily resigned from the temple day", and finally there is no policy to learn.After a hundred years of waiting and setbacks, the Chinese today know that constitutionalism has nothing to do with political training, and that constitutionalism can only be achieved in constitutionalism.As Hu Shi said, constitutionalism is the best training for constitutionalism. Today in the 21st century, with the gradual transformation of the Chinese government from a management-controlled government to a public service-oriented government, concepts such as "limited government", "transparent government" and "responsible government" are becoming increasingly prominent.The so-called "having a constitution does not mean having constitutionalism, and having laws does not mean having the rule of law", corresponds to the growth of citizens' awareness of rights.In this regard, the most representative detail is the blowout growth of "people suing officials".In the 1980s, there were only a few dozen cases of "people suing the government" every year. Today, "Qiu Ju's lawsuit" and the official's loss are no longer news.In the five years from 2003 to 2007 alone, Chinese courts at all levels accepted more than 470,000 first-instance administrative cases, among which the number exceeded 100,000 in 2007 for the first time.This "everyday resistance" to power shows that every Chinese citizen has constitutionalism in him. The only condition for constitutionalism is human beings. Constitutionalism and the political life it advocates have become familiar to more and more Chinese people.Keynes said that it takes about fifty years for a good idea to change the course of human history.Of course, the actual situation may be longer, which is why the author feels that China "missed Hu Shi for a hundred years".Although many sages accepted the idea of ​​constitutionalism as early as the beginning of the twentieth century, they understood that constitutionalism is a kind of politics for ordinary people, and it is a "naive" exercise that can be mastered immediately after learning.However, it has to be admitted that China is still in the process of transformation that has not yet been completed or even really started.