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The Principle of Human Rights in Nationalist China: John C. H. Wu and the Ideological Origins of the 1946 Constitution

Published online by Cambridge University Press:  17 February 2009

Thomas E. Greift
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Extract

The 1946 Constitution of the Republic of China was a product of 13 years' effort by the most liberal elements of the Kuomintang to create a permanent constitution for modern China. The Constitutionalists' goal was to synthesize “autochthonous” norms from the Chinese tradition and modern western liberal values, in accordance with the pre-existing syncretism that Sun Yat-sen had created a generation before. They hoped, thereby, to reach a just balance between the claims of the individual and the claims of the collective in the modern Chinese polity.

Type
Research Article
Information
The China Quarterly , Volume 103 , September 1985 , pp. 441 - 461
Copyright
Copyright © The China Quarterly 1985

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References

1. See generally Jingxiong, Wu, “Zhonghua minguo xianfa caoan de tese” (“Features of the Draft Constitution of the Republic of China”), Dongfang zazhi, Vol. 33, No. 13 (1 04 1936), p. 10Google Scholar, reprinted in Jingxiong, Wu and Gongjue, Huang, Zhungguo Zhixianshi (History of the Establishment of the Chinese Constitution) (Shanghai: Shangwu yinshuguan, 1937), p. 608.Google Scholar Detailed English-language reviews of the process of constitution-drafting are found in Ch'ien, T. S., The Government and Politics of China (Cambridge, Mass.: Harvard University Press, 1950)CrossRefGoogle Scholar and in Ts'ao, W. Y., The Constitutional Structure of Modern China (Melbourne: Melbourne University Press, 1947).Google Scholar For an overview, see Cohen, Jerome Alan, “China's changing constitution,” The China Quarterly, No. 76 (12 1978), p. 794.CrossRefGoogle Scholar

2. Jingxiong, Wu, “The status of the individual in the political and legal traditions of old and new China,” in Moore, Charles A. (ed.), The Status of the Individual in East and West (Honolulu: University of Hawaii Press, 1968), p. 401.Google Scholar

3. See Eastman, Lloyd E., The Abortive Revolution: China Under Nationalist Rule, 1927–1937 (Cambridge, Mass.: Harvard University Press, 1974), pp. 148–51, 170.CrossRefGoogle Scholar

4. For an English-language version of the Constitution (including Chapter II, “Rights and Duties of the Chinese People”) see Ch'ien, , The Government and Politics of China, p. 447.Google Scholar

5. See especially Article 23 (rights may be limited by ordinary legislation). For a discussion of one aspect of the practical limitations on the exercise of individual rights in Nationalist China, see Ting, L. H. H., Government Control of the Press in Modern China, 1900–1949 (Cambridge, Mass.: Harvard University Press, 1974).CrossRefGoogle Scholar A detailed critical discussion of the status of human rights in Taiwan, where the 1946 Constitution remains in effect, is found in Mingmin, Peng, “Political offences in Taiwan: laws and problems,” The China Quarterly, No. 47 (07–09 1971), p. 471.Google Scholar

6. See, e.g., Jingxiong, Wu, “Sanmin zhuyi he falü” (“Sanmin zhuyi and law”), in Jingxiong, Wu, Falü zkixue yanjiu (Research in the Philosophy of Law) (Shanghai: Shanghai faxue bianjishe, 1933), pp. 39, 55.Google Scholar (Sun Yat-sen's idea of democracy like modern democrats' ideas.) See also Jingxiong, Wu and Gongjue, Huang, History of the Establishment, p. 125Google Scholar (support for “modern” notion of rights); ibid. p. 772 (“modern” notion of freedom expounded by Sun Fo).

7. For an analogous study of an individual scholar and his role in the formation of ideas central to the development of modern western-style government in an East Asian country, see Minear, Richard H., Japanese Tradition and Western Law: Emperor, State and Law in the Thought of Hozumi Yatsuka (Cambridge, Mass.: Harvard University Press, 1970).CrossRefGoogle Scholar

8. Wu had been a judge in Shanghai and dean of the Comparative Law School of China there. See his autobiography, Beyond East and West (New York: Sheed & Ward, 1951).Google Scholar

9. Major examples of the relevant commentary literature are collected in Jingxiong, Wu and Gongjue, Huang, History of the Establishment.Google Scholar

10. Ibid.

11. Ch'ien, , The Government and Politics of China, pp. 447–48.Google Scholar

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13. This is Professor Eastman's suggestion. See Eastman, , The Abortive Revolution, pp. 163–80.Google Scholar

14. This conclusion would set Wu up as an example of the kind of chronic intellectual tension in the modern Chinese mind described by Joseph Levenson. See Levenson, Joseph R., Confucian China and its Modern Fate (Berkeley and Los Angeles: University of California Press, 1965).Google Scholar

15. The focus of the present study is Chinese constitutionalism; it is not meant to be a full study of Wu's life as a thinker. Accordingly, it is Wu's political and jurisprudential thought of the 1930s – the formative years of constitution-making – that is examined here. No attempt has been made to integrate into this analysis Wu's post-war, Catholic writings, which constitute a separate subject for intellectual historians beyond the scope of the present investigation. For examples of Wu's post-war work see Sih, Paul K. T. (ed.), Chinese Humanism and Christian Spirituality: Essays of John C. H. Wu (Jamaica, N.Y.: St. John's University Press, 1965)Google Scholar; Wu, John C. H., Cases and Materials on Jurisprudence (St. Paul, Minn.: West Publishing Co., 1958).Google Scholar

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19. International Covenant on Civil and Political Rights, G.A. Res. 2200, 21 U.N. GAOR, Supp. 16, at 52–53, U.N. Doc. A/6316 (1967); International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200, 21 U.N. GAOR, Supp. 16, at 49, U.N. Doc. A/6316 (1967).

20. See generally Chang, Hao, Liang Ch'i-ch'ao and Intellectual Transition in China (Cambridge, Mass.: Harvard University Press, 1971).Google Scholar

21. Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, Mass.: Harvard University Press, 1972), p. 19Google Scholar; Hayek, , The Constitution of Liberty, pp. 176–93.Google Scholar

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26. Bailyn, , The Ideological Origins of the American Revolution, pp. 19, 51, 56.Google Scholar

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29. Dworkin, Ronald, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978), p. xi.Google Scholar

30. See Herman, Harold, “American and Soviet perspectives on human rights,” Worldview (11 1979), p. 156Google Scholar (Soviet notion of rights phrased in terms of what citizen may do, not what state may not do; rights are facilitative rather than restrictive of state power; rights have the character of a programme, or a set of goals, to which the state has committed itself).

31. Levenson, , Confucian China and its Modern FateGoogle Scholar; Schwartz, Benjamin, In Search of Wealth and Power: Yen Fu and the West (Cambridge, Mass.: Harvard University Press, 1964).Google Scholar

32. Article 11.

33. Article 13.

34. Article 14.

35. Article 10.

36. Article 12.

37. Article 17.

38. Article 16.

39. Article 8.

40. Article 18.

41. Jingxiong, Wu, “Sanmin zhuyi and law,” p. 45.Google Scholar

42. Articles 19, 20.

43. Ts'ao, , The Constitutional Structure of Modern China, p. 39.Google Scholar

44. Ch'ien, , The Government and Politics of China, p. 447.Google Scholar

45. Ibid.

46. Ts'ao, , The Constitutional Structure of Modern China, p. 39.Google Scholar

47. Ibid.

48. Ch'ien, , The Government and Politics of China, p. 448.Google Scholar

49. Ibid.

50. Jingxiong, Wu and Gongjue, Huang, History of the Establishment, pp. 124–26.Google Scholar

51. Ibid. p. 224.

52. Ibid.

53. Ibid. p. 127.

54. Cf. ibid. pp. 607–08.

55. Cited ibid. p. 772.

56. Jingxiong, Wu, “Sanmin zhuyi and law,” p. 45.Google Scholar

57. Eastman, , The Abortive Revolution, pp. 159–80.Google Scholar

58. Ibid. p. 179.

59. The lively current debate over the issue of Fascism in China during the Nanking period may be traced in a series of articles and responses by Professor Eastman, who argues that the “Fascist” label is appropriate for at least some parts of the Kuomintang during this period, and his critics, who argue that it is not. Eastman's views are set forth in Eastman, , The Abortive RevolutionGoogle Scholar and in Eastman, Lloyd, “The Kuomintang in the 1930's,” in Furth, Charlotte (ed.), The Limits of Change: Essays on Conservative Alternatives in Republican China (Cambridge, Mass.: Harvard University Press, 1976), pp. 191–212Google Scholar. His critics' views are found in Chang, Maria, “Fascism and modern China,” The China Quarterly, No. 79 (09 1979), p. 553Google Scholar and in Gregor, A. James and Chang, Maria, “Nazionalfascismo and the revolutionary nationalism of Sun Yat-sen,” Journal of Asian Studies, Vol. 39, No. 1 (11 1979), p. 21CrossRefGoogle Scholar. Eastman replied to Gregor, and Chang, in “Comment – Fascism and modern China – a rejoinder,” The China Quarterly, No. 80 (12 1979), p. 838Google Scholar. I believe that Eastman has the better of the argument. While it is true that much of the Fascism of the 1930s appears to derive directly from Yat-sen, Sun and that “revolutionary nationalism”Google Scholar may be a better term than “Fascism” for his ideology, nevertheless Eastman's evidence for the introduction by Chiang Kai-shek and others of direct admiration for Mussolini, military ethics, and the leadership principle is quite strong. Regardless of the result of the debate, however, it is clear that individual rights were very far from the minds of the Chiang Kaishek wing Kuomintang ideologues.

60. Eastman, , The Abortive Revolution, pp. 141, 178.Google Scholar

61. Jingxiong, Wu, “The status of the individual in the political traditions of old and new China,” p. 401.Google Scholar

62. See generally deBary, William T., “Individualism and humanitarianism in late Ming thought,” in deBary, William T. (ed.), Self and Society in Ming Thought (New York: Columbia University Press, 1970), p. 145Google Scholar; Munro, Donald J., The Concept of Man in Early China (Stanford: Stanford University Press, 1969).Google Scholar

63. See, e.g., the discussion of law during the Qing period in Sprenkel, Sybille Van der, Legal Institutions in Manchu China, A Sociological Analysis (London: Athlone Press, 1962).Google Scholar

64. See, e.g., the exposition of the limitations on officials in the Qing Code, in Bodde, Derk and Morris, Clarence, Law in Imperial China (Cambridge, Mass.: Harvard University Press, 1968)Google Scholar and in Metzger, Thomas A., The Internal Organization of Ch'ing Bureaucracy: Legal, Normative and Communication Aspects (Cambridge, Mass.: Harvard University Press, 1973), esp. Ch. IV.CrossRefGoogle Scholar

65. Cf. the discussion of paternalistic government in Locke, , The Second Treatise of Government, pp. 30–44Google Scholar (parent acts as temporary guardian of children until they are mature enough to care for themselves and exercise free will intelligently; but parental and political power are built upon entirely different foundations).

66. Munro, , The Concept of Man in Early China.Google Scholar

67. Hayek, , The Constitution of Liberty, p. 29.Google Scholar

68. Chang, , Liang Ch'i Ch'ao and Intellectual Transition in ChinaGoogle Scholar; Schwartz, , In Search of Wealth and Power.Google Scholar

69. These are discussed in detail in Nathan, Andrew J., Peking Politics 1918–23. Factionalism and the Failure of Constitutionalism (Berkeley, Los Angeles and London: University of California Press, 1976).Google Scholar

70. Ibid. p. 25.

71. Eastman, , The Abortive Revolution, p. 143.Google Scholar

72. Jingxiong, Wu and Gongjue, Huang, History of the Establishment, p. 909.Google Scholar

73. See Article 1.

74. In numerous passages he distinguishes the “enlightened” (xianzhi xianjue) from the “unenlightened” (houzhi houjue) and the “unconscious” masses (buzhi bujue). See, e.g., Yat-sen, Sun, Sanmin zhuyiGoogle Scholar, translated in Hsu, Leonard, Sun Yal-sen, His Political and Social Ideals (Los Angeles: University of Southern California Press, 1933), pp. 301, 310, 314, 330, 331.Google Scholar

75. See the discussion in Gregor, and Chang, , “Nazionalfascismo and the revolutionary nationalism of Sun Yat-sen,” pp. 27–33.Google Scholar

76. Jingxiong, Wu, “Sanmin zhuyi and law,” p. 42.Google Scholar

77. Jingxiong, Wu and Gongjue, Huang, History of the Establishment, p. 125.Google Scholar

78. Eastman, , The Abortive Revolution, p. 142.Google Scholar

79. ibid. pp. 140–58.

80. Jingxiong, Wu, “Sanmin zhuyi and law,” p. 45.Google Scholar

81. Wu, John C. H., “The problem of extraterritoriality in China,”Google Scholar in Wu, , The Art of Law and Other Essays, Juridical and Literary (Shanghai: Commercial Press, 1933), p. 72.Google Scholar

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83. See, e.g., Hayek, , The Constitution of Liberty.Google Scholar

84. See generally Dworkin, , Taking Rights Seriously, p. 3.Google Scholar

85. See, e.g., Holmes, Justice's dissenting opinion in Abrahms v. U.S., 250 U.S. 616 (1919)Google Scholar (although Constitution permits punishment of speech producing or intending to produce clear and imminent danger that it will bring about forthwith substantive, immediate evils, evil must be imminent).

86. Jingxiong, Wu, “The status of the individual in the political and legal traditions of old and new China,” p. 401.Google Scholar

87. Ibid.

88. Jingxiong, Wu and Gongjue, Huang, History of the Establishment, p. 909.Google Scholar

89. Jingxiong, Wu, “The status of the individual in the political and legal traditions of old and new China,” p. 402.Google Scholar

90. This is Professor Eastman's suggestion. See Eastman, , The Abortive Revolution, pp. 163–80.Google Scholar

91. Cf. Levenson, , Confucian China and its Modern Fate.Google Scholar

92. Jingxiong, Wu, Beyond East and West, p. 5.Google Scholar

93. Jingxiong, Wu, “Sanmin zhuyi and law,” pp. 39–40.Google Scholar

94. See generally Jingxiong, Wu, Beyond East and West.Google Scholar

95. See generally Wu, John C. H., Juridical Essays and Studies (Shanghai: Commercial Press, 1928).Google Scholar

96. See generally Wu's essays collected in Sih, (ed.), Chinese Humanism and Christian Spirituality.Google Scholar

97. See Jingxiong, Wu, Beyond East and West.Google Scholar

98. Jingxiong, Wu, Juridical Essays and Studies.Google Scholar

99. See Wu, John C. H., “The legal theories of James Wilson,”Google Scholar in Jingxiong, Wu, Juridical Essays and Studies, pp. 183, 188.Google Scholar

100. Ibid. p. 190.

101. Ibid. pp. 188, 192, 195.

102. Wu, John C. H., “Mr Justice Holmes's theory of right,”Google Scholar in Wu, , The Art of Law, p. 130.Google Scholar

103. See generally Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 1961).Google Scholar

104. See Wu, John C. H., “Stammler and his critics,”Google Scholar in Wu, , Juridical Eassys and Studies, p. 155.Google Scholar

105. Kant, , The Metaphysical Elements of Justice, pp. 85–86.Google Scholar

106. Wu, John C. H., “The juristic philosophy of Justice Holmes,”Google Scholar in Wu, , Juridical Essays and Studies, p. 106.Google Scholar

107. See generally my companion piece to this article, “The principle of right in Nationalist China: the jurisprudential thought of John C. H. Wu” (unpublished paper on file at East Asian Legal Studies, Harvard Law School, 1980).Google Scholar

108. See Wu, John C. H., “The juristic philosophy of Roscoe Pound,”Google Scholar in Wu, , Juridical Essays and Studies, p. 125.Google Scholar

109. Ibid. p. 137.

110. Jingxiong, Wu, Beyond East and West, p. 91.Google Scholar

111. Wu, , “The juristic philosophy of Roscoe Pound,” p. 137.Google Scholar

112. Ibid. p. 131.

113. Ibid. p. 140.

114. Pound, Roscoe, Some Problems of the Administration of Justice in China (Nanking: National Chengchi University, 1948), p. 35.Google Scholar

115. Wu, , “The juristic philosophy of Roscoe Pound,” p. 135.Google Scholar

116. Ibid.

117. Ibid.

118. Jingxiong, Wu, “Sanmin zhuyi and law,” p. 45.Google Scholar