摘要
民之父母觀念所形成的種種思想變化皆聯立指向樹立約束君王的義務規範，無形中形成了規範君王權力的較高法，也與當代憲法為較高法的憲政思想可以相通。然則無體的人國之禮在漢代走入了歧途，成為專制政體的裝飾。以後到了外患難已，存亡絕續的關頭，儒家的知識分子似乎總會在不同的時代中回眸先秦，特別是孟子的思想，以溯問君制之原理與弊端。從宋末明末到清末，終於與業已發軔於西方的憲政思想相遇。 民之父母不能率獸食人的君民關係規範，與當代的平等自由主義憲政思想，畢竟還有差距。民之父母的提出，雖然提昇了人民應受看重的地位，但是尚未完全確定人民才是目的的政治認識，其所擁護的君主政治即與確認人民才是目的的民主政治有間。此為其差距之一。民之父母強調愛護人民，並不強調愛護人民必須施以平等的對待，凡是圓顱方趾之民都該平等關懷的重要性。此為其差距之二。民之父母強調社群關係，但未注意到個別意義而非集體意義的個人應該具備的主體地位。此為其差距之三。民之父母注意到民意政治的價值，卻未能抽離天命以尋找民意政治的道德正當性，也就尚未近入訴諸公民自治、公民參與的個別自主同意做為政治正當性依據的境界。此為其差距之四。民之父母建立了君王義務思想，但未產生與政府義務成為對向的個人權利意識，也就是充其量只知政府與人民各有義務，而不理解人民權利就是正義之所在的真諦。此為其差距之五。「民之父母」透過「無體之禮」的說法，雖然隱約產生了相當於以禮約束君王行事的規範意識，但與通過成文的憲法典來約束政府的立憲思想，究竟不能畫上等號，此為差距之六。凡此均可視為先秦憲政思想的限度所在。 差距的存在非謂差距的不可跨越；兩千年前的孟子已經走得接近，後人駐足回眸之餘，也不妨再向未來注目。「民之父母」早已建立了政府必須愛護、保護人民才能具有政治正當性的基本社會意識，於此基礎上，如能重新調整投射──「人民就是目的」、「人性並無階級」、「個別受到尊重」、「正當性在民主」、「權利就是正義」、「實證的較高法」等六種思維目光；那麼，或許可以這樣問：民之父母，豈無後乎？
From the Qin Dynasty to the Han Dynasty, an unwritten, or uncodified, li slowly emerged, and can be taken as a set of higher laws that seemingly restrained rulers from using martial force to subjugate the people and required rulers to deploy their resources for the welfare of their people. However, during the Han Dynasty, the uncodified li, which governed the relationship between the state and its subjects, was invoked only nominally to justify the sovereignty of the emperor. In dire times, whenever China was invaded and in the grip of foreign rule, Confucianists would look to the teachings of the pre-Qin era, especially those of Mencius, to parse the fatal flaws of the monarchy system. This type of reflection and analysis was observed as the curtain fell on the Song Dynasty, Ming Dynasty, and Ch'ing Dynasty, during the last of which the Chinese parent-king institution came face to face with Western constitutionalism. Certainly, there are still some differences between contemporary egalitarian, liberal constitutionalism and the paradigm that forbade a parent king to command man-eating beasts. The first is that monarchy is not democracy, which
serves the people; the latter parent kings had elevated the status of their subjects but cannot be credited with creating the political ideology that it is the people that the government should serve. The second difference is that in a democracy every individual is treated equally; though
the parent kings took pains to look after the welfare of their subjects, they did not do so thoroughly while considering the principles of equality. The third difference is that the parent king institution stressed community, a collective entity, and did not recognize the entity that is an individual. The fourth difference is that the parent kings understood the importance of popular support but continued to draw their legitimacy from the heavenly mandate instead of the moral righteousness inherent in having popular support; that is, the parent king's state was not governed by the people or of the people. The fifth difference is that the parent kings recognized their obligations to their subjects but not the individuals'rights, which otherwise coexist with a democratic government's obligations; at most, the parent-king institution recognized that the ruler and the subjects both
have obligations, but it fell short of realizing that the people's rights are what ensures justice for all. The sixth and final difference is that while the uncodified li represented a set of rules that guided the emperor's conduct, it does not compare to a codified constitution that keeps the government powers in check. These differences may be taken as the limits of the primitive form of constitutionalism in the pre-Qin era.
關鍵詞
民之父母、奴隸、人國之禮、平等、正義
the parent king、slavery、li between the state and its individual subjects、equality、right
