Xiaomei Liu
Source: China French Open.
Keywords: "right" holder straight
Author brief introduction Institute of International Law, Chinese Academy of Social Sciences
It is an indisputable fact that China's modern concept of rights is far from the original concept of rights in the West. The crux of the problem lies in where we stand, how we interpret this "difference" and how we understand its historical significance.
In the sense of methodology, the author hopes to study the formation of China's modern concept of rights, abandon the paradigm of "western-China-centered view" or "traditional-modern view" as much as possible, and try to make an objective interpretation from the specific "context" [2]. Even if interpreted objectively, there are different angles. In the book Study on the Theoretical Characteristics of Modern Constitutionalism in China, the author makes a preliminary investigation on the occurrence and characteristics of China's modern concepts of civil rights, freedom and rights. At that time, the focus was on the interpretation of "difference" itself, that is, the understanding of historical context and the specific content of difference. On the basis of the above research, this paper intends to turn to the interpretation of the "historical significance" of the occurrence of rights. To be precise, it is an interpretation of the historical significance of "difference". This is inspired by Lydia H. Liu's book Cross-Language Practice. Because, whether it overemphasizes "differences" or insists on "China", according to Rey Chow, a famous sinologist and representative of overseas postcolonial studies, it is more or less repeating the hegemonic color of the West it abandoned in disguise, [3] because it implies taking the West as the frame of reference or taking the West as the authoritative norm. Therefore, as long as the presentation of "differences" is emphasized, no matter how carefully the text avoids making value judgments on China and the West, such as good or bad, excellent or bad, advanced or backward, traditional or modern, it is still easy for readers to establish an imaginary connection between differences and advantages and disadvantages. Therefore, this paper intends to focus on explaining the historical significance of differences. That is to say, "the communication between different languages in translation activities and cross-language practice" is regarded as a crucial link in the historical process, and the "discourse space of one's own history" in the process of right translation and the formation of rights concepts is interpreted accordingly. [4]
First, the translation of "Dui"
The importance of language in China's imagination of modernity is beyond doubt. Therefore, the study of China's modern history must take into account the history of cross-language practice. [5] Therefore, the investigation of China's modern concept of rights began with the translation and selection of western language "rights".
(a) Translation of "rights" in the law of nations: rights
Modern political and legal words are mostly translated in holiday articles, and the important legal term "right" is directly translated from ancient Chinese. The earliest translation of the western word "right" with the word "right" was The Law of Nations, published in 1864 and translated by American missionary Ding Weiliang, which gained great recognition in academic circles. [6] But in the process of 1862' s translation of the Law of Nations, Ding Weiliang himself was puzzled by the translation of the word "right" for a long time, bluntly speaking, the translation of "right" was only a stopgap measure:
Since public law is not a subject, it should be specialized. Therefore, there are occasional meanings in the original text that are difficult to achieve in Chinese, so the words are often reluctant. That is, like the word "right", the book not only refers to the rights of the company, but also refers to the share that ordinary people deserve; Sometimes the word "interests" is added, such as the "rights" that Shu Ren has. At first glance, these words are often unsightly, but when they know they must be used, they often use them. [7]
The phrase "do it as a last resort" here reflects Ding Weiliang's true feelings, because he and his translation team are familiar with ancient Chinese and know that the word "dui" is difficult to accurately convey the spiritual meaning of the western word "dui". In this way, in order to correctly understand Ding Weiliang's translation of "right", it is necessary for us to briefly discuss the specific meaning of the word "right" in western and ancient Chinese.
According to Leo? According to Strauss's investigation, the concept of rights in the west has undergone a transformation from "natural rights" to "human rights" and from "moral rights" to "legal rights". [8] Therefore, rights have three levels of significance in western culture: the first level is natural legitimacy, that is, in the field of morality and value, rights are equated with "justice" and "goodness"; The second level is human autonomy, that is, in political life, individuals take precedence over the state; The third level is the legitimacy of interests, that is, in legal relations, legitimate interests and demands are protected by the state.
Etymologically, the word "dui" in ancient Chinese is a compound word. "Right" has two meanings: one is scale, weighing hammer, standard, scale and measurement, [9] which is the basic meaning; The second is flexibility, that is, "force" relative to "classics". [10] "benefit" is a category opposite to "righteousness", which refers to interests, income, benefits, etc. Although the distinction between Confucian classics and righteousness and benefit is not completely denied, it does emphasize that classics are more important than rights and both righteousness and benefit are equally important in value evaluation. Especially under the moral setting of "gentleman's righteousness, villain's benefit", the pursuit of "benefit" has lost its legitimacy in moral evaluation. [1 1] The compound word "quan" is not frequently used in the classical literature of the pre-Qin period, but it still firmly establishes the basic meaning of "powerful wealth and goods". [12] Since the Qin and Han Dynasties, the word "right" has been everywhere in classical literature, but its basic meaning is to follow the pre-Qin period and remain unchanged. For example, the word "power" is used many times in Historical Records, and its basic meaning is power and interest. [13] It is worth noting that in China's traditional culture, the basic meanings of "power", such as power, goods and interests, all contain derogatory meanings in moral evaluation, which is very obvious in the important classic "On Salt and Iron", reflecting the development direction of Han's political ruling concept. [ 14]
It can be seen that whether it is "right", "benefit" or the compound word "right", it is used in the context opposite to Confucian moral ideal in the traditional culture with Confucianism as the mainstream, so it does not contain the meaning of "legitimacy". This is quite different from the concept of rights in the moral context since the Western Enlightenment. Ding Weiliang, who is familiar with the essence of western constitutional culture and has a profound understanding of China's ancient culture, is well aware of the irreducibility of this difference between China and the West. In desperation, he made a wise choice: packaging and sealing the moral legitimacy of rights, so as to put the word "right" in the Law of Nations on the legal level as much as possible.
To sum up, the translation of the legal meaning of "right" representing power and interests in the law of nations basically expresses the meaning of legitimate rights and interests, but it does not directly contain the literal meaning of "justice". [15] However, on the moral level, China traditional culture has always regarded Confucian ethics as the basis of legitimate rights and interests, which is far from the understanding of rights in modern western countries. The moral legitimacy of "right" in western languages is exactly what Yan Fu can't give up.
(B) Yan Fu's translation of "rights": people are straight
Although Ding Weiliang himself was not very satisfied with the translation of "right" and left a paragraph about "using it as a last resort", in reality, with the popularization of the Law of Nations, the word "right" has been widely accepted. Until the beginning of the 20th century, Yan Fu was puzzled and helpless by Ding Weiliang's translation of "right" and could not give up the moral legitimacy contained in "right".
Due to the far-reaching influence of the Law of Nations on the translation of "rights", Yan Fu used the word "rights" in English in his early years, although he found this translation problematic. Since then, when Yan Fu translated "On the Boundaries of Group Rights", he once again pondered the translation of "rights" and wrote a letter to discuss with Liang Qichao of the same age:
The word "right" was difficult to translate three years before I started reading books on politics, and the strong translation of the word "right" was deceiving the monarch and damaging my ideals. Later, when reading Hanshu, I came across the sentence "Zhu complained that Liu dismissed from office" and suddenly knew the word "right", which is the translation of right. However, its name is mixed with duty, so it is difficult to be universal. Later, when I saw Jing Yi and Wen Shu in Gaoyou, I saw that he understood Shi Mao's sentence "I am straight", which means that straight is the correct translation before letters, while translating the word "right" into "right", which literally means that the word "right" is immovable, and the western language also has a straight meaning, so the geometric straight line is called "right straight line" and the right angle is called "right angle", which shows the meaning of Chinese and western languages. It is natural to be an upright person, and it is also natural to be an upright person, knowing what people's livelihood deserves. How can we say that it is not inherent that rights are close to compulsory management? In western languages, there are nouns such as the right of being born, the right of God and me, which means that people born for it can be straight, but the right of being born for it can't. [ 16]
In Yan Fu's view, western rights are a compound concept, which contains the factors of "straightness" and "fitness" as the underlying meaning or deep structure, namely "justice"; At the same time, this concept also contains superficial meaning, that is, the connotation conveyed by the word "dui" in ancient Chinese. In these two meanings, the former is basic, so it is restrictive and "aspect"; The latter is limited, so it is secondary, and this is "use". [17] Based on the analytical structure of "body and function", the translation of rights should first express the meaning of "justice", but there is no such value judgment as "right" or "benefit" in the Chinese word "right". After repeated searching, Yan Fu finally got the word "straight", which means "right" at all times and in all countries, so he decided to translate the rights into "human straight" or "heaven straight", and translated them into "human straight" and "heaven straight" on different occasions in Milton Liberty's translation "On the Boundary of Group Rights". [ 18]
Second, accept the word "right"
Ding Weiliang and Yan Fu's understanding of the western word "right" is basically accurate, but they made different choices based on the dilemma between the two meanings contained in the right and the so-called body use. The former abandoned the "body" of rights, that is, moral legitimacy, because of the consideration of reality, so it used the "use" of "rights" to express rights and interests in the legal sense; Based on the sincerity of academic theory, the latter returned to the deep structure of rights, that is, justice, fairness and goodness, with the "body" of "human straightness" as the basic meaning of rights and the "use" of rights as the supplement, expressing the complex connotation of rights.
Unfortunately, the translation of "People's Straight" did not spread, and was eventually eliminated in the long river of history by the translation of "Right". In theory, Yan Fu's translation of rights should be more accurate, but why do China people still choose "rights" to represent rights?
It is probably inappropriate to say that Yan Fu's near-meaning translation is not chosen in practice because everyone is ignorant and does not understand the true meaning of rights. [19] In modern China, the intellectuals who led the public opinion were experienced people who created the world, and they had a considerable understanding of Chinese and Western creations, and their understanding of the meaning of rights was rich and accurate. For example, Liang Qichao, the object of Yan Fu's discussion on translation rights, started writing Xinmin Shuo in the same year of Yan Fu's writing, that is, 1902. [20] It is in Xinmin Shuo that Liang Qichao has at least three different understandings of the concept of right, namely, the right in the sense of autonomy, the right obtained by competition and the right in the sense of conscience, which shows three different concepts of right modernity, namely, the right modernity of autonomy, the right modernity of competition and the right modernity of conscience. [2 1] Liang Qichao's interweaving use of the three meanings of "power" shows that he basically understood the meaning of "power", and he can undoubtedly understand Yan Fu's meaning of "people's straightness", but he did not adopt Yan Fu's opinion and still chose the word "power". Why?
Translating the rights representing justice, correctness, propriety, etc. with the rights with strong, compulsory and powerful meanings will indeed cause extremely inappropriate confusion. Therefore, after Yan Fu and Liang Qichao, the review of "rights" has always existed. For example, in the early 1930s, Meng Sen, an expert in Qing history, published an article about scholar-officials in Independent Review, in which he spoke highly of the harm of the combination of "power" and "benefit". He said, "If we make it clear that this word is beneficial now, then we will risk the word' power' to lead people to struggle, and the country will be in danger." He profoundly pointed out that the Confucian classics of "gentleman's righteousness, villain's benefit" endowed the word "power" with inescapable internal localization significance. Between China and the West, there is also Hu Shi, who, together with Yan Fu, is known as the leader of two generations of liberalism in China. After repeatedly explaining "right", he not only reached a conclusion quite similar to Yan Fu's: "In fact, the original meaning of" right "is only what one should have, and its correct translation should be" the right to righteousness "; [22] But like Yan Fu, the concept of righteousness is quoted in Confucian classics.
If the foregoing judgment of this paper is correct-that is, from Ding Weiliang to the modern intellectuals in China, represented by Yan Fu, Liang Qichao and Hu Shi, they not only accurately understood the meaning of rights and their moral context, but also profoundly understood the differences between China and the West of "rights", made a rigorous textual research and careful thinking on the concepts of people's rights and legitimate rights, and profoundly reviewed the extremely inappropriate confusion caused by the word "rights". What's the point?
Third, the reconstruction of the meaning of "right"
The reasons why China chose "right" in modern times are very complicated, and political, economic, cultural and ethnic factors are intertwined. Therefore, it is far from a problem of translating words, nor is it just a problem of intercepting, misreading or selectively absorbing western rights concepts. The occurrence of "right" in modern China has its profound historical context and arduous mission of the times. Therefore, this paper has no intention to study the understanding of modern intellectuals in China to the western philosophy of rights, but focuses on how modern intellectuals in China construct their theories about modern nation-state through the discourse of "manipulating" rights in the west, how "rights" participate in the creation of China's modern theory of nation-state as a discourse strategy, and how "rights" are translated, quoted, repeated and debated, that is, they are legalized again and again. [23] In short, what this article examines is not the "misunderstanding" of rights by modern intellectuals in China, but the reconstruction of implied meaning. Moreover, this reconstruction embodies the historical significance and characteristics of the times of China's modern discourse on rights.
In modern China, the intellectuals who devoted themselves to innovation were extremely miserable mentally, but on the other hand, the theme of the times of saving the nation from extinction gave them unique depth and responsibility. At this historical stage and this responsibility of the times, they have to "manipulate" the western concept of rights and philosophy of rights at three levels: the relationship between individuals and the state, the paradigm of "body use", the theory of contract and evolution, and the political philosophy of liberalism and utilitarianism.
The relationship between the individual and the state
No matter in the west or in modern China, the concept of rights was born in the relationship between "individual and state" and was understood and accepted. As we all know, the western concept of rights originated from the definition of the relationship between citizens and the state in the political philosophy of "individualism", so it accepted the transcendental concept of "natural rights". At the same time, rights become the position of individuals against the state. However, for modern China, although the theme of the times is also "confrontation" [24], the two sides of confrontation are not individuals and countries, but China and the West. Under the background of the whole country against the West, the concept of nation is embedded with the concept of self, and the concept of self is embedded with the national consciousness, that is, the relationship between individuals and the country is "cohesive" rather than confrontational. [25]
The bond of "no eggs under the nest" between the individual and the state made modern China transform the western concept of rights on two levels.
The first level is the transformation of the subject of rights from individuals to countries. In ancient Chinese in China, right means "power and wealth", which is exactly what China needs to gain independence in the world. Therefore, it is necessary to cut and transform the three meanings of rights in western culture: natural legitimacy, human autonomy and interest legitimacy. First of all, it removes the meaning of "natural legitimacy" of rights. The reason is simple: natural legitimacy is based on the traditional natural state of western natural law and the theoretical presupposition of natural human rights, which is transcendental; However, since China put the subject of rights above the state in modern times, we are losing our homes under the threat of colonialism and colonization, and it is impossible to think that there are any natural and inalienable rights between countries. On the contrary, in this world of survival of the fittest, the rights of a country depend on the struggle and struggle of every citizen, which is by no means natural and just.
Secondly, it is to change the meaning of "human autonomy", that is, to expand the subject scope of "autonomy". In this regard, both Jin Guantao and Liu Qingfeng have analyzed:
As long as the legal rights are not further endowed with moral significance, it is easy to introduce the idea that the autonomy of the owners of power and interests is justified in a certain range from the perspective of legitimate rights and interests. For example, a country's legitimate rights and interests endowed by international law also mean that it has autonomy in related fields.
Because the original meaning of "right" in Chinese is power and interest, intellectuals in China in the late Qing Dynasty realized that the autonomy of the state and the group was justified from the perspective of safeguarding state power and interests. This is the reason for translating "right" with "right". [26]
Therefore, in modern China, the subjects enjoying autonomy are not only individuals, but also the state and people. Correspondingly, the concept of rights has also derived three concepts: the right to go abroad, the right to citizenship and the right to individuals. [27]
Finally, it is the analysis of the meaning of "the legitimacy of interests". Although China people first came into contact with the concept of "right" in Ding Weiliang's legal sense, under the rule of "natural selection, survival of the fittest", the interests of the state as the subject of rights are "contested" rather than endowed by law. The word "dispute" fits the inherent localization meaning of "right" in ancient China.
The second level is to put the meaning of "human autonomy" in rights under the theoretical framework of nation-state, that is, the transformation of means and purposes. On the surface, China intellectuals' understanding of individual freedom and rights involves three meanings of western rights: natural legitimacy, human autonomy and interest legitimacy. However, individual rights here are only a means to "liberate" individuals from their families, clans or other traditional relationships, with the aim of enabling the state to obtain direct and intermediate ownership of individuals. Needless to say, this is far from the western political design aimed at protecting individual rights.
Of course, the author does not deny the textual research results of Jin Guantao and Liu Qingfeng on the meaning of "individual autonomy" in the article "The Evolution of the Concept of" Right "in Modern China", nor does he deny that there are national and nationalist discourses among intellectuals in modern China that will soon be used to control personal anxiety. [28] However, under the mission of saving the nation from extinction, these intellectuals are all nationalists in the final analysis. Therefore, individual rights and freedoms have always been placed in the value hierarchy between individuals and countries, that is, the value hierarchy of "self" and "self" [29]:
When the individual is regarded as small and the country as big, it is impossible to criticize the country from the personal point of view beyond the hierarchical relationship that a language is named and stipulated in advance. In addition, the concept of "self" gives the country a mature and subjective image, which makes it replace "self" as the agent and operating place of rights at the discourse level. In fact, before "ego" and "ego" became synonyms for individuals and countries, individuals and nation-states were more closely linked, so countries had greater absolute possession of individuals. [30]
It can be seen that the western concept of rights is to liberate people from God and gain autonomy; China's modern concept of rights is to liberate people from the traditional family and clan relations, and then hand them over to the state to help the state "strive" for autonomy. In this way, on the one hand, under the connection between individual and state, the subject and connotation of rights have undergone the above-mentioned two-level transformation, and the rights of state, individual, legitimacy, autonomy and interests are intertwined, resulting in the ambiguity and drift of the meaning of the word right in modern China literature; On the other hand, it is precisely through the staggered collocation of the subject of rights and the connotation of rights, and through the wandering between the connotation of state rights and individual rights, the intellectual group has woven a feasible modernization road for the national China: giving individual autonomy to liberate it from traditional relations; Give individuals the right to pursue legitimate interests, encourage them to "fight for" their due interests, and enable the country to gather personal strength and interests to seek independence and prosperity.
(2) Social contract theory and evolution, liberalism and utilitarian political philosophy.
The western concept of constitutionalism and rights is deeply rooted in the soil of social contract theory and individual liberal political philosophy. Therefore, these transcendental natural rights are inherent in human beings, and the state (government) is established to protect the inalienable rights of human beings. However, this presupposition and logic did not conform to the national conditions of modern China.
In modern China, there was no social contract, no natural human rights, and some suffered from the weakness of the country and the humiliation of the people after Western violence. How can people's lives be guaranteed when the country is in turmoil? How can we talk about property and dignity if people's lives are not guaranteed? Obviously, the rights of the Chinese nation and the people of China cannot be endowed by "Heaven", and we can only "fight for" them by ourselves. Therefore, Yan Fu, as a teacher who introduced western learning, gave up Locke and was not attached to Rousseau. On the contrary, he put almost all his identity in Mill and Smith's utilitarianism and Spencer and Huxley's social evolution theory. Because both utilitarianism and social evolutionism pay attention to personal interests while maintaining a concern for "public happiness". Yan Fu only needs to shift Smith and others' attention to "public happiness" to the concern and consideration of his own national strength, and he can use the liberated personal ability to achieve the collective goal. At the same time, Yan Fu also attached great importance to the cultivation of the concept of consistent interests. He explained the importance of integrating self-interest and national interests with the metaphor of "one country is like one suit", and thought that one of the reasons for his defeat in the Sino-Japanese War was that he could not "bump his head, then his limbs should react"; If you stab him in the stomach, you will know when he will die. [3 1] On the contrary, the burden of defending the country falls on the "northern corner".
Because Yan Fu agrees with the political philosophy of utilitarianism and evolution and realizes the importance of integrating self-interest and national interests, he even regards individual freedom as a good medicine to "drum up people's strength, enlighten people's wisdom and cultivate new people's morality". How did such Yan Fu change the right from "right" to "people's right" and from "evolution" to "people's right"? I think it is due to the limitations of the two books and Yan Fu's respect for academics. The theory of evolution involves how a country can survive in competition under the natural law of "natural selection, survival of the fittest". Although he is not satisfied with the translation of "rights" here, under the topic of nation-state, he lacks a platform to compare with western individual rights, so he temporarily shelved this translation problem. The boundaries of group rights are different. It discusses the relationship between individuals and society, which is close to the relationship between individuals and countries in the western concept of rights. Therefore, when the nation-state problem is not involved, Yan Fu can put his translation into purely academic consideration, and a "people-oriented" translation method has emerged. If Yan Fuxian translated "On the Boundaries of Group Rights", perhaps he would have to give up the "human straightness" in the theory of evolution.
To sum up, Yan Fu and his contemporaries' views on rights show two characteristics because of their choice and promotion of evolution and utilitarian political philosophy. First, as long as we encounter the problems of the nation-state, we must choose and transform the original meaning of western rights. Second, people's rights in China and China are not innate, but they compete under the law of survival of the fittest, which is the so-called "competitive right" in Liang Qichao's Xinmin Shuo. Of course, the "struggle" here is not "competing for profits from top to bottom, and the country is in danger", but the interests won must be unified with the country.
(c) the "body and use" paradigm
"Style" and "use" are a pair of categories in Zhu's philosophy. Body is essence, use is function. Everything with a body is useful, and the body is the only way to use it. Internal ontology and external function are interrelated. As long as the body really exists, the function will inevitably appear. But in modern times, the category of "body use" no longer expresses the relationship between metaphysical essence and function, but the relationship between purpose and means in the sociological sense. What it cares about is not rationality, but the effectiveness and practicability of its application to society.
It is in this category that "rights" are transplanted from the west to cultivate the "body" of the nation-state. Yan Fu's translation of rights, on the one hand, pays attention to the distinction between the "body" and "use" of rights, that is, righteousness is regarded as the "body" of rights, and right is regarded as the "use" of rights, emphasizing "straight" as the basis and restriction of the underlying meaning or deep structure of the meaning relative to "right" in ancient Chinese. On the other hand, he also ignored the background of "Chinese and Western styles". In fact, in the process of transplanting rights in modern China, what is important is how to find or construct a body suitable for China, rather than what is the body seeking western rights. Therefore, the key to Yan Fu's "straightness" of western rights is not whether it correctly expresses the ontology of western rights, but whether it can be accepted by the ontology of China and whether it is useful to the ontology of China nation-state. However, the term "people's rights" is defined too strictly both in the subject of rights and in the connotation of rights, so it is impossible to wander between the three meanings of rights and accept the transformation from human rights to state rights.
To sum up, the intellectuals represented by Liang Qichao interweave the rights of autonomy, competitiveness and conscience, which is by no means "not fully aware of the subtle differences between them" [32], but deliberately realize the construction of a nation-state by manipulating the discourse of rights. Modern China needs enough flexibility in the subject of rights, the connotation of rights and their collocation, so as to effectively realize the transformation from individual autonomy to national autonomy with the help of right discourse and provide a path for the construction of national China. Therefore, the translation of "people-oriented" was not chosen by history, not because its correctness was questioned, but because it hindered the extension of state rights, so it could not participate in the construction of modern China nation-state.
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Another: systematic thinking on basic rights.
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