近代对抗性国家模式的辩证发展.pdf

Journal of China Institute of Technology Vol 28 2003 10 Dialectical Development of the Modern Antagonism National Model 近代對抗性國家模式的辯證發展近代對抗性國家模式的辯證發展 張聖時 Chang Sheng Shih Doctoral Candidates in Graduate Institute of Political Science National Taiwan Normal University 國立臺灣師範大學政治學研究所博士候選人 Office of Student Affairs in School of Continuing Education China Institute of Technology 中華技術學院進修部學務組長 Abstract The purpose of this text is based on the central theory of Constitutionalism to aim at the advocate of modern republicanism Rousseau to refute the theory of Social Contract and to prove that it is mainly because of its four aspects of falsehood in logic structure when modern Republicanism doctrine used to design the theory of dualistic antagonistic state power to overthrow the theory of monism antagonistic state power in feudal era that has caused many constitutional governments fail Based on the pre conclusions that the above mentioned four falsehoods are good enough to compose the cause to breakdown or to fail contemporary democratic constitutional governments and further on the basis of Liberalism and post modernism this text tries to propose a dialectical development plan for those constitutional governments with theory of the modern antagonism national model Key words Republicanism Liberalism Constitutionalism National model of Antagonism General Will Social Contract Mutual deterrence 摘 要 摘 要 本文的目的即是從立憲主義的核心理論 從近代共和主義的倡導者盧梭出 發 對於社會契約論進行否證的批判 證明近代共和主義因爲要推翻封建時代 的國家一元權力對抗理論 所設計出來的國家二元權力對抗理論 在邏輯結構 上的四種謬誤 乃是導致許多國家憲政失敗的主要原因 本文以爲此四點謬誤 即足以構成導致當代民主國家憲政崩解或憲政失敗 327 近代對抗性國家模式的辯證發展 的主要原因 並以此爲出發點 進而在自由主義與後現代主義的基礎上 試圖 從對抗性國家模式的理論 提出憲政主義應所變革的辯證發展 關鍵詞關鍵詞 共和主義 自由主義 憲政主義 對抗性國家模式 國民總意 社會契約 相互嚇阻 I Introduction When people discuss reasons of coups or a democratic constitutional country collapsed in history they start from different models such as Structural or Construable ones or historical or models of political culture as well then they may come into different endings like the one in the point of consolidating democracy to grand more trust with government force or that one to entitle the constitution clause of democratic freedom as high as criticism proof and no objection ideology For example when German scholars and politicians tried to remedy the failure of Weimar constitution Weimarer Reichsver fassung they composed the Basic Law for Western Germany postwar with particularly strict restrictions on the inalterability of Party goal and the democracy in an effort to suddenly change its defeated identity from an extremely right fascist military regime prewar to a model of solid democracy in a constitutional government And the 5th republic constitution of France required the constitutional court to be the consolidator for constitutional government in the mechanism and expected the president to be the defender of constitution at his own will like prewar the German Bismarck Otto von Bismarck Sch 1815 1898 came to life to arm France with iron constitutional system and bloody leadership In addition that lately a number of communist countries resolved just let Francis Fukuyama a rightist scholar declare proudly that Freedom and Democracy are an impossible consciousness terminal for any further improvement But we will question the dominant constitutional political system on this point why there were military coups in Philippine and Chile How to explain the paralyzed situation of justice existed in most third world countries How to explain politically why the overbearing nationalism tide in 21st century has placed itself above the doctrine of freedom and equality labeled by Liberalism and Republicanism We might as well put questions deeper After western enlightenment rises we keep God without questioning and substitute God with reasoning So if our every brain is fully used to design a human society will Rationalist and classical historicism s 328 Journal of China Institute of Technology Vol 28 2003 10 dream come true that human being will reach their own promised destination with the rational wings The purpose of this text is assuming the answers to above mentioned two questions are negative and based on the key theory of Constitutionalism to deny the Social Contract theory supported by modern Republicanism to prove that due to its four aspects of logical falsehood the theory of dualistic antagonistic state power designed to overthrow the theory of monism antagonistic state power in feudal era is the main cause to resolve or fail contemporary democratic constitutional governments and further based on Liberalism and post modernism to propose a dialectical development plan for those constitutional governments with theory of the modern antagonism national model II Dualistic antagonism nation model of the modern Republicanism In terms of historical development process the modern Republicans really got very high achievements both in theory by confronting and fighting against the monistic state power system and also in practice by successfully overthrowing countries with feudal monarchs as the highest state power and setting up the antagonism model of dualistic state power the government has the initiative in executive operations and meantime has passive legislative and judicial power which sweepingly influenced many areas including the country founded by Mr Sun Yat sen 孫 仙 then the modern Republicans advocated a constitutional government with separated force and functions In terms of the political changes happened in America and European countries simply as Scott Gordon 1999 294 stated as below The countervailance model of the state was central to the political theory of opponents of the monarchy in seventeenth century English and was definitively embodied in the settlement that followed the Revolution of 1688 It was also the operative model of colonial government in America That is to say Montesquieu s Charles Louis de Secon dat Montesquieu 1689 1755 theory of power separation obviously provided a theoretical foundation for governments to make interdepartmental pins so as to guarantee the security of people s life and properties and the freedom This antagonism model used to replace monism state power model Monarch was equivalent to the law had became the 329 近代對抗性國家模式的辯證發展 future new model of state power during the Britain political ideological trend in the 17th century But such simple historical statement only says partially about the historical significance and political meaning of the antagonism national model Deeply saying Liberalism the representative consciousness of the capitalist class faced Marx s strong criticism though Marx described the Republicanism as the capitalist s consciousness Marxism as well as the Republicanism should face the same question of legitimating government ruling no matter how powerful the capitalist class was or how much the autocrat once been empowered All these were powerless now just like what Rousseau Jean Jacques Rousseau 1712 1778 has said Let us agree then that might is not right and that we are obliged to obey legitimate powers Rousseau 1762 1999 49 In terms of the legitimacy of ruling the history actually has proved not as Marx imagined that government force of any form could press its power over the people in the name of historical materialism No matter how threateningly armed when left wing political parties or ultra left military regime came into power they would confront with the same query of its legitimate ruling Then they would either search the Marx s for theoretical basis of Vanguard party or label themselves as Nationalism in an attempt to disintegrate attacks from all sides to defend its legitimacy It s same true with the modern Republicans in 17th century we might follow Marx to temporarily justify them in name as the Bourgeoisie No matter how anxiously they wanted to send the Throne onto the guillotine their top task was to propose a new political belief to replace the religious one Fortunately the group of Enlightenment philosophers from the mid 17th century to the French Revolution in 18th century who built up another set of thoughts just set an valuable starting point for modern Republicans To put it simple this valuable starting point was to resume the tradition of ancient Greek Humanism to replace God with human s rationality that Protagoras 481 411BC and promise that human being will lead themselves to the promised land of honey and milk by means of rational power That means with their rational power the humankind was able to design and re set up a society of practical politics nations and social structure out of their own minds in no need of the imaginary Will of God This was the historical birth of the Social 330 Journal of China Institute of Technology Vol 28 2003 10 Contract And under the same background the legitimacy governing by a feudal despot became meaningless when it was replaced by the 2nd God human being s rational power Rousseau 1762 1999 49 once said Critically It will be objected that a despot ensures civil peace for his subjects Very well but what do they gain thereby if the wars that his ambition brings down on them his insatiable greed and the troubles inflicted by his administrators plague them more sorely than their dissensions would What do they gain thereby if civil peace itself is a source of misery Prisoners live peacefully in their dungeons is that enough for them to feel comfortable there But in fact if the human being really wanted to step away from God based on reason it s obligated to build up a complete social structure and make it legitimate which was an arduous task Observed Michael H Lessnoff 1999 231 that the so called Social Contract was set forth by the Republican to complete this task So called social contract theory it should really be called political contract theory was traditionally a method of trying to solve what is known to specialists as the problem of political obligation This problem it is really a family of problems has to do with such questions as the justification of political authority how far it properly extends why and whether individuals have an obligation to obey rulers on what conditions etc The method used to answer these questions by social contract theorists such as Hobbes Locke and Rousseau was to offer a description of the state of human society in the absence of political authority the so called state of nature stressing the shortcomings of this state of nature and to postulate the necessity for individuals therein to solve their problems by agreeing together to establish and submit to political authority on some stated terms So from the very beginning one value of the Social Contract as the core theory of modern Republicanism was to find the qualification and legitimacy for a society constructed by reason Another big value lied in that the modern Republicans were not merely good at It s a pity Mr Sun Yat sen misunderstood the real meaning of Social Contract and explained the civil rights distortedly only to make his revolutionary theory of civil rights pointless Lack of theoretical foundation just made it hard for his successors in power to uphold such theories to be academic ones 331 近代對抗性國家模式的辯證發展 theory of legitimacy they went further to drive many kinds of political mechanism to protect the individual value and therefore required essential rights which were proclaimed by the enlightenment philosophers or Humanists expressed in the abstract philosophy like the theory of Natural Right and more obviously in their strong distrust toward administration power Once commented Rousseau 1762 1999 94 Since any increase in the size of a state gives those who are entrusted with public authority greater temptation and greater opportunities to abuse their power it follows that the greater the strength possessed by the government for the restraint of the people the greater should be the strength that is possessed by the sovereign in its turn in order to restrain the government I am not speaking here of strength in absolute terms but of the relative strength of the various elements in the state Hereinabove the segmented state power meant not the illusive people s sovereignty jarred with Government power but as Leslie Armour 1988 analyzed the restraint over excessive power advocated by Locke John Locke 1632 1704 could be traced back to theory of separation of powers which required the check and balance in Government actions the pin down between administration and legislation procedures the defending exertion of judicial power and eventually making the General Will as the collective consciousness of the republic So far Scott Gordon s sample of antagonism national model began to show up in many countries where Republicanism was regarded as political Metaphysics after the French revolution III Logic in the dualistic antagonistic mode of state power The historical importance of Social Contract is outstanding from obliteration but when we reflect upon the dualistic antagonistic mode of state power and the reason why the contemporary constitutional government failed just based on the book of Marxists think it actually cares only about the Capitalist interest excluding the Proletariat s Thus Liberalist s idea of the primary condition and right make one a human being does not humanly include the entirely whole humankind Scott Gordon thinks that from the history point of view the basic principle in designing constitutional governments is that Le pouvoir arr te le pouvoir He also believes that only the political society reflecting this principle can succeed in setting up the democratic constitutional system to limit state power 332 Journal of China Institute of Technology Vol 28 2003 10 Social Contract written by Rousseau in 1762 A D then we will question a lot on its structural logic Firstly we need to clearly define the twine brother of Constitutionalism and Democracy But here the discussion proceeds in no assumption that readers are ignorant to politics theory but in an aim to disclose a hypothesis introduced in this text even enjoyed the supplementary democratic politics the structural logical defects in Constitutionalism or modern Republicanism in itself will still cause failure nevertheless the supplementary role will extremely delay or accelerate the collapse of constitutional governments Just as what Scott Gordon 1999 236 237 was for Constitutionalism as I have been using that term refers to a political system that imposes constraints upon the exercise of political power As I have frequently emphasized it is not identical with democracy which I take to refer to a polity in which the opportunity to participate in political processes is open to the citizenry at large without significant restriction According to such definitions even a direct democracy would not be a constitutional order if there were no constraints upon what the majority of the people can do in exercising the coercive power of the state The democratic politics plays a supplementary role in favor of the theory of dualistic antagonistic mode of state power and demonstrates in two levels one is of the constitution passing the constitution and its execution to support judicial inspections against the abuse of administration and legislation power and the 2nd level is the daily legal inspection through elections to support legislative force to weaken the administration power and to force a circulatory succession among the administration leaders This separation of power on the surface makes justice and legislature passive The effect turns out to be the tug of national performance of action or inaction And the necessity of antagonism comes from the important and query proof assumption in liberalism agreed by Martin Loughlin 1992 96 This conception of the individual as autonomous and as existing prior to and separate from society is a common characteristic of liberal theories It also tends to influence the shape of other aspects of the theory When models are constructed from such premises for example 333 近代對抗性國家模式的辯證發展 there is a tendency to view government as a restrictive and even as a repressive agency Such models also share an essentially procedural conception of justice and view the primary function of the state as that of securing a framework of law through which individuals may pursue their own particular goals The twin of modern Republicanism Liberalism hypothesizes that idea of the individual is prior to the society in theory and also engage itself in forming the antagonism national mode in practical political society to standardize nation s structure and limit government power in order to ensure people s basic freedom and right so by now it has emerged as the theoretical cornerstone of Liberalism and new born Constitutionalism But the final purpose of the Social Contract is not to dismiss existence of country as Marx did but instead to actively support the nation to perform legitimacy and try to find out solutions in the dilemma between limiting the state power and keeping proper national operation Rousseau s solution was to build up a political society of two models just as Scott Gordon 1999 16 pointed out There are only two basic models of social organization In one the authority to command is structured in hierarchical order with each entity that is supreme The other model depicts a network of independent entities that interact with each other with no supreme authority The operational concept that drives the analysis of the first model is the notion of sovereignty Its counterpart in the second is countervailance or the dynamics of checks and balances This political scheme aims to in Rousseau s words Find a form of association which will defend and protect with the whole of its joint strength the person and property of each associate and under which each of them uniting himself to all will obey himself alone and remain as free as before This is the fundamental problem Mr Sun Yat sen s understanding deserves our c