摘要
本文試從法治發展史的觀察角度談論兩個相關的問題，一是平等怎麼會是讓中國人感到陌生的觀念，二是令人陌生的觀念又是怎麼樣在進入憲法文本的過程中佔據著顯赫的位置？ 平等做無差等解，其意晚出，是外來語而非本土語言。「禮」做為中國古時最主要的社會規範，其核心功能是區分貴族平民奴隸與建立不平等的政治社會關係，也辨別親疏長幼以建立不平等的人倫關係，初從西方接觸到平等觀念的大清君主臣民，對之或是難以理解或是感到難以思議。本文列舉六種不同的態度觀察西方的平等觀念如何震撼了當時的社會精英，從而反應在他們的社會政治行動方案之中，為平等原則進入憲法帶來契機。 從清末民國到人民共和國，平等在所有的憲法草案人權清單中始終佔據著列為首條的顯赫位置，其體例則有兩種，代表著政治人格平等的不同思考路徑。這是憲政史發展上的一樁大事，平等條款載入憲法文本並不保證理想必然化為事實，但的確是成為社會現實不可或缺的憲法誡命。
This short paper explores two complementary issues in the history of the modern Chinese constitution’s development. First, why the conception
of equal protection of the law (“ping dung”) was alien to the Chinese. Second, how this exotic conception was assimilated into the Chinese
constitution and now occupies a prominent position in modern times.
The term ping dung was not employed to represent equality until the late 19th century. It is not native to the Chinese language and was imported into the language as a translation. Li, as the core of social norms since ancient times in China, performed the critical role of distinguishing the nobility, civilians and slaves, as well as defining guan xis so that social/political hierarchy may be established. In the late 19th century, when the elites of Ching Dynasty first encountered the Western notion of political equality, they were stunned. The author cited in this paper six varying attitudes to explain how different approaches were taken by the Chinese intellectuals at the time to graft political equality into the action plans of social/political reform, leading eventually to its introduction into the constitution making process. From late Ching Dynasty, through the Republic of China, and then the contemporary People’s Republic, the principle of political equality almost without exception sat atop every bill of rights in numerous drafts/versions of the Chinese constitution. Of all those drafts/versions, however, only two models were adopted, each advocating a unique approach in realizing political equality. This chapter of constitution making has hitherto received inadequate attention. Being placed prominently in the text of the constitution does not necessarily guarantee faithful implementation. On the other hand, if ping dung were entirely absent from the text, its implementation in the political world would be impossible.
關鍵詞
平等、平等原則、可疑的分類、政治平等、民族平等
equality、the principle of equal protection of law、suspect class、political equality、equality among racial groups
