Abstract:A major constitutional significance of war and revolution, the early modern constitutional construction of Western and China, dynamic mechanism cannot do without war and revolution. But how to put the rights of war into a constitutional right based on peace, rather than a radical revolution constitutional collapse path, you need to really implement "the revolutionary spirit of" the end of the constitution.

[Abstract] to war, revolution and the constitution as the theme, launched from the viewpoint of history of ideas, learning can reveal the modern constitutional. Early modern war experience from the wars of religion to the war between the States, from the national war to the civil war, then from the civil war to the evolution of the revolution. After the revolution, the formation of the constitution, constitutional and dispel the guardian constitutional the three constitutional moment, and can be attributed to the constitutional path "Constitutional Revolution end path" and "revolution" of the two logical path. A major constitutional significance of war and revolution, the early modern constitutional construction of Western and China, dynamic mechanism cannot do without war and revolution. But how to put the rights of war into a constitutional right based on peace, rather than a radical revolution constitutional collapse path, you need to really implement "the revolutionary spirit of" the end of the constitution.

[Key words] war revolutionary people's war revolutionary constituent constitution

In this paper the author discusses the problem is an important subject of Political Constitution: War, revolution and constitution, genesis relates China modern constitutional.

However, as everyone knows, the constitutional is accompanied by guns, blood and tears, humiliation and glory and established, and because of this, the author deeply honored, but have a non wandering mind. Unfortunately, learning about the China constitutional, the author passes over Chinese constitutional law nowadays, rarely see a deep and rich content of view, there is some history and politics works involving more. Thus, could not help but have a question: should pay attention to these problems do not constitution not in the transition period of Chinese constitution and constitutional theory needs seriously Not long ago, the author in the "people's will corrupt" in one article, has proposed the "political constitution of processing is one of the constitutional the birth and death of the cause, mechanism, its evolution path, dynamic factors, shaping mode, purpose and spirit of the Constitution in the very period of birth and death". Constitutional theory. In this sense, war and revolution in the history of China and foreign countries, especially in Chinese modern history, it has a close relationship with the constitutional, study of modern constitution, the author thinks that cannot do without war and revolution. Research of the author in this paper is to, from the constitutional perspective, specifically said, from the occurrence of modern China constitutional perspective, consider the problem of war, revolution and constitution.

　　One, the ancient war and classical political

"Zuo Zhuan" cloud: "affairs of state, in the worship and military." ("Cheng Gong thirteen years"), Herodotus "historical" said: " most beautiful and noble things is nothing but war and."

Two great traditional Chinese political thought in very precise, generalizes a classical political characteristics, namely the war with the Constitution and national fundamental relationship. Of course, the war is the classical era of war, or the age of cold weapons of war, the constitution is the classical era constitution, or "constitutional", or "ritual, ritual system", but the country is the classical sense of the country. Both China spring and autumn and Warring States periods as vassal state, or the period of ancient Greece and Rome city states, many feudal kingdom of Qin and Han Empire and the late Qing Dynasty and China before Chinese dynasties or west Rome Empire and medieval, war and the Constitution be a life-and-death matter occupies a position, or say, war and the constitution is two the pillars of national foundation based on classical.

In an ancient history, or a so-called ancient history, the central content of no more than two cases : a war, one is. The war has very important significance for the ancient politics, we can readily cite some of the classic cases, such as the shape of the spring and autumn and the Warring States China pattern of Changping famous Chengpu war, war, lay the three pattern of the battle of red cliff, western the Peloponnesian War, Rome and Carthage, etc.. The war for a country of birth and death, for the rulers and the ruled, the system structure of its domestic and foreign policy, has the vital significance. In this regard, can be multiple levels of military science, politics, history, analysis and study, this kind of classic monograph is also an immense number of books. From the political perspective of the constitution, the war of the classical period and the constitution, this is just some problems, these problems will help us to form an accurate understanding of the modern constitutional.

(a) the ancient constitution or public religion and etiquette and ritual

The written constitution is a modern term, if the intention is, nothing more than a country or political body in the foundation, I called the classical constitution refers to it, a study on rheological its etymological, here not probe.

The Constitution in the ancient ritual, is composed of a special status -- high priests -- master, they are the highest level of society, determines the all important affairs in the society, especially in the event of death or country. Three class Platon "king article" division, namely the rulers, protector, producers of three grade has a good description of the features of the ancient political system.

Why the sacrifice occupies an important position in classical society? Confucius revision of the "book of Rites" Chinese and Kuranger -- "the ancient city of ancient Greece and Rome, rights and constitutional study sacrifice" we solved this, as. This is because, a series of ritual sacrifice and the resulting, constitute the fundamental rules of a political community, the community is the common will and common interests of the public and be a life-and-death matter rules, anyone ( must) identity, comply with, adhere to the set rules and etiquette system, otherwise they will be expelled from the home or abroad, and exile in ancient times is a far better than the death penalty more severe punishment.

Because the ancient people's view of the world is that, they put the family and country as the place for the individual life home, family or individual nations of the offspring, the flame continued existence, it is hard to imagine one can from this group alone. Therefore, the so-called personal rights, customs, national political system is attached to this common ancestor spirits or national god.

But how to know the relationship between their source of life, living root ancestor or the will of the gods? which requires sacrifice or fortune telling, is this ancient religion, thereby forming a somewhat mysterious a series of rules, but also can be said to be the ancient constitution, which stipulates the ancient marriage system, land system, inheritance system, especially the public memorial ceremony, has formed a national patriarchal.

Because it is so important, sacrifice so, the priestly class will occupy the highest position in society, and even the rulers. About the priest, different ethnic ancient have been recorded, they are communicating with God's people, the pass issued by state lawmakers, left and right. "Historical records Fengshan book" once wrote "the Duke of Zhou is king, Jiaosi Houji to heaven, So Fumitake in the hall to God", since it is a country of courtesy and music, planning. Greek antiquity there are "can not do the priests, it means not to do a king" rules, "the Old Testament" wrote of the high priest, they were the earliest leaders, even before the "King", the first high priest Mose is Jewish, he must come from God. The "Ten Commandments" has become one of the fundamental law of the earliest history of western.

(two) the war and sacrifice and the first constitutional revolution

In ancient society, although the war and sacrifice are event in the country, but in contrast, worship has a priority, so in the front row. This is the ancient people's world outlook and values associated with physical significance, war, and sacrifice more spiritual meaning. The specific operation, each time before the wars, the ancients had to worship, divination, pray to ancestors or gods, such as to defeat the return, then held a grand ceremony, ritual undead, appease the ancestors and the gods. On the relationship between war and sacrifice, "Zhou Xia lawsuit horse Fourth" and "history of the Peloponnesian War" in western classics is discussed.

The priest's position is higher than the samurai, from virtue, reverence and respect worship, higher than the warriors and pride. The priest held the key to a political body or nations, the warrior is responsible for guarding it. War is the country's most powerful action, the outcome of the war may be a country's safety, but that doesn't change the nature of the state in the system. So, Platon was in his class on provisions protector ranks second place.

The war and the war of human, physical, intellectual, that is a political body physical strength, but it is not the soul, the soul is the religious belief. The ancient constitution on the one hand and the material in the system level, they regulate these force function, efficiency, selection mechanism, such as military chief of logistics support system, as well as a quasi military social and family system, production system, inheritance system, public system, etc.. Whether China or memorial, belief is the fundamental forces dominate social system and even the conduct of the war, is fundamental to all social system the so-called constitutional rules. So, is a world religion belief, the ancient world, war powers and attached to the politics of war power does not occupy the absolute position.

However, this situation in a certain period of ancient society, quietly changed, maybe the changes experienced hundreds of years or even thousands of years, but this time finally appeared, and in all the national history are almost invariably happened, that is the "King" to replace the priest. Political power, especially with the military power and political power, and eventually replaced the religious power, become the supreme ruler of nations, a major political power change can be said to be the first constitutional revolution in ancient society.

The priest and the power of faith follow it, hold political power in particular by the military war (either internal or external) and who has the authority of the people of the highest social. They are state king, whose power deformation royalty or other forms of constitutional right to rule.

Of course, despite the strong political power is irresistible, still has a strong countervailing power in the belief of the world, they are a powerful control of political power, while the king is not the only form of political domination. For example, the ancient Chinese with spring and autumn and the Warring States, Qin and Han Empire and emperor system, aristocratic Republic, democracy, and tyranny, oligarchy and Rome emperor dictatorship of western ancient, and medieval theocratic monarchy and two yuan of confrontation, etc.. But no matter how to say, holding a sword of political power has become the center of social order, the constitution is no longer belongs to the belief of the world, but a step into the political authority, especially in the military power of the vassal rulers, although not completely. Because, apart from the religious background of the advanced law, there is another force, that is public opinion, which is the common will of the people or the consent of the people. But the real awakening the power already belongs to the modern things, but still need the political power of this tool, wherein, the modern war's role will be more prominent. This caused a revolution in modern political system, or human history of the second revolution, namely people's constitutional revolution.

　　Two, "early modern" war and peace as well as the modern constitutional science

From classical to modern constitutional system, this process lasted for hundreds of years, during which great changes have taken place in the historic, religious belief, social economy, huge political system and ideology and culture, science and technology, the rich content, is far from a literature that can include, nor a thought can clarify. The subject of this article, the author feels, "early modern" constitutional occurrence problem, is worth thinking. On the "early modern" problem, I have many papers have discussed. The author thinks, for our understanding of the modern society, especially the so-called modern politics, law, economy, science, culture and thought, the modern rule of law, democracy, constitutionalism and the construction of national economy, society and civilization gradual progress, and the construction of thought and the modern system of this historical period of the early generation, have very the important significance of theory and reality.

Especially at the present age Chinese is still in a transitional society, the transformation, the author's understanding is essentially says, is still in a pre modern to modern (partially include post modern) historical transition stage, with the author's words, the political logic of modern phase is consistent with early. Therefore, study on the early experience of modern politics, for us today, is committed to promoting benign transformation Chinese modern government is of great enlightening significance.

Under the above background, has a modern constitutional perspective, browse about the relationship between war, revolution and constitution, especially those at the war and revolution throughout the China Centennial constitutional in another sense, there will be, you will find the constitution theory of mainstream popular, whether it is traditional for the proletariat the dictatorship of the constitutional propaganda, or from the western 20 century constitutional theories, especially the law, constitutional interpretation, constitutional norm positivism called, they for the early modern constitutional Genesis lack deep, for the cultivation of this period of nation building and civil society, in modern society (15 century ) war and revolution as well as their decisive influence even shape for the constitution, for the modern constitutional behind a series of complex political, economic, religious and military connotation, for the early modern war to the revolutionary transformation, especially the war is the revolution of the sovereignty of the people of the modern constitutional theory of creation and so on, the lack of deep and clear, therefore, just about right on the specification to closure of To explain the semantics analysis and constitution, or become a tool of ideology on defense.

In fact, the modern constitution is the constitutional development in the early stage of perfect, modern national country (Nation) shape after generated, the constitutional text and constitutional case for Hermeneutics and normative analysis, specification of constitutional law and the constitution, the constitutional Hermeneutics and positivism, and so on, have theory and practice. The author does not have what doubt, because these theories of constitutional law is early modern ( or political constitution) theory fruit growth up, is not the modern war and revolution, the constitutional purpose so? Is not for the sake of harmonious society to a rule of law civilization?

I have to doubt, modern constitution be opinionated to ignore and rejects their occurrence mechanism, avoid their stylized early constitutional history of modern and theoretical basis, the war, revolution, people, constitution, Constitutional Revolution ended, transition problems behind him, this is also the time of his life therefore, cannot explain the constitutional norms can specification, constitutional interpretation are able to implement power source, the source of the source of authority and justice.

From the perspective of modern constitutionalism, the author thinks, war, revolution and constitution (constitutional) associated with the has a key relationship, their complex and comprehensive meeting activities, the state system and the world of the modern pattern of the internal dynamic mechanism or hub of Materia Medica, which constitute the basis of the two basic international domestic and a pattern in which we face. Classical political war belongs to the state of war as well as the Imperial War, worship and religion while in the classical constitutional occupy an important position, but the center content is not war, the relationship between worship and military parallel to constitute the country event. The western society after the Rome Empire, especially the evolution history of the middle ages, Christianity has become a decisive force, not only constitutes the medieval constitutional ( Empire and the kingdom of constitutional) spiritual foundation, and the church important become reality. Investiture contest as we know it, is a typical representation of the church and secular theocracy and the confluence of two yuan of confrontation. A medieval constitutional not content to be discussed in this paper, however, we see, the modern political development, the late medieval and early modern war is one of the important content, it has the effect of play a decisive role to the modern constitutional.

The influence of modern war in the modern constitutionalism is the constitutional significance (and not just politics, international relations, military science and other aspects of the significance of ), the author thinks, because around (early modern) war ", showing a" religious war, national war, people the war. The people's war, including "the war to protect the Constitution Evolution of war", and even to the development of completely waste constitutional War ( class struggle and proletarian revolutionary war). It is precisely because of the change, the fundamental nature and purpose of the subject and so war war, war and the constitution, and the occurrence of modern constitutional theory, the relationship between the nature of. The modern constitutional genealogy is a major theme, contains extremely rich content, only to understand its intrinsic mechanism, it is possible to understand the modern constitution and modern constitutional, understand the Constitution and constitutional hermeneutics specification called, and deal with the above problem, research field belongs to the political constitution. The political constitution science has a close relationship with the constitution, is the occurrence of representation theory. The theme of war, the author tries to do a rich inner logic briefly outline.

(a) from the wars of religion to the (National) between states

War is an important affairs, ancient so, even today. But modern warfare, especially in modern war, take up some other form, among them, the relationship between war and political major. The relationship between the war and the political point of view, the changes from ancient to modern times is the so-called by the war started, or say, decided to ancient society (including the medieval ) of a fundamental social to modern transition elements. However, the investigation of the origin of modern constitutionalism, the author would like to point out, this war has evolved a series of nature is different, changing the nature of the war, decided to change from ancient times to the present form, shape the modern constitutional background. Below, we first discuss the evolution of the first, the country from the wars of religion to the nation's war evolved. As we know, the crusade is a major form of warfare in the later Middle ages. In spite of this war, Europe and many other forms of As one falls of the war, such as around the territory, trade, jurisdiction disputes caused by the war, but as a religious war Crusade has great symbolic significance.

About three times the mass of the spread to the world (except the Eastern Empire) war, there are many political, economic, ethnic, territory, power and other reasons, but they say from nature is still the wars of religion, from the Catholic Church of Rome started in the name of the Pope, initiated by the Christian God, as the flag, the European kingdoms, duchies and feudal lords to participate actively in the heathen secular. The belief, "the Christian Kingdom" of war, is the legality of the war lies, religious beliefs and church law is the right foundation of the war, which can mobilize all the forces of the society, the feudal lords regime, exclusive right, privilege, and all other kinds of legal power, make the right of war in this war of religion, or coordinated by the right of war and governance. Can say, the war constituted a very right time, namely religious war "war kingdom". The two element pattern the theocracy and the original jurisdiction of the regime, by church law field and governed by the feudal law field parallel confrontation ( to Jesus Jesus, Kaiser to Kaiser), broken by the very moment the religious wars.

However, the wartime theocratic kingdom could not endure, in fact, from the beginning is not identical and stable, this point we can see it from the Pope and Emperor war demands between several different advocates the Crusades and the successor of the. Especially with the course of the war and the actual results, there is a significant variation in the wartime theocratic Kingdom, this is the war the onset of the unexpected, which is hoped to further strengthen the theocratic through war to consolidate the leading rock, unified Christian Empire of secular power and power structure, however, the religious war, is the church Empire collapsed. Not only the West Rome Empire did not recover, but the Catholic Church ( Vatican) theocracy gradually decline, a new political subject -- the nation -- mould and forging after the wars of religion, beginning.

The positive significance of the Crusades through wartime Kingdom condenses Westerners to "western" (the Christian Kingdom) identity, the height of the military in the artificially created pressure on the formation of identity in both before the formation of the state in western countries and nations of being strengthened -- a common kind of Western or European sense. The basis for this commonality is the Christian faith. The existence of such common for the European Constitutional ( Dante's sense of the world in Germany) offer the possibility of certain based, while Europe has experienced the process of secularization of religion, color has faded. However, the failure of the Crusades more typical: marked shaping the European unified political reason to common religious body is no longer possible, perhaps Rome from the west after the collapse will no longer. Because the West no longer have to destroy all the princes of the center of force, even Charlie the great did not. The armed forces are highly dispersed and diversified decided Europe can not be unified. The Crusades were temporary use of multi armed forces, rather than internal integration, so it is impossible to achieve unity of purpose, but to make the armed forces more diversified situation fully exposed. So the Crusades are doomed to failure, it almost does not exist for all parties to armed integrated ( constitutional) regulation, so "wartime kingdom" is not stable. Logical is the "European Civil war".

In this sense, the secular armed forces and political body is born, for religious reasons which cannot be overcome, eventually fell to the rights and interests of the contest, it is the common cause of the reformation, the split occurred between Christian, Catholic and Protestant two camps of the war. This series of war is a transitional form between the Crusades and the national war, the political foundation of the former is the unity of "the Christian Kingdom", the latter is the national religion, war is the cloak of religion in the national war. It is this war, not only lead to the unified Christian political community is no longer possible, and led to war power as a national power completely legitimate. Rights of war is the main power of state, has become an indisputable fact, and then get admitted, rise to legal status.

Early in the war, modern launched a new theme, that is pure to Worldly Kingdom, namely the construction of a sovereign government. Whether the regime is the monarchy, Republic or democracy, and tyranny, oligarchy, which removes the theocratic sacred cloak, started fighting for naked land, power, wealth and human justice and reason of state, for the common good, the public interest. In this way, the war as a vital tool of cultivating and shaping of modern political system, changing from the wars of religion as the wars between nation states, or through war and gradually built up a modern nation state. It should be pointed out that, the nation is the modern new things a nature is completely different from the classical city-state and the medieval feudal kingdom. Properties of the nation have a variety of paper, but the land territory, sovereignty system and national identity, is to unite the common elements of them, these are the classical city-state have never even heard of it, is the medieval theocracy and feudal system did not know. It is the essential factors of modern war, the modern economy, the separation of church and state and the enlightenment movement, both of which the new things, including war, plays a decisive role in creating pattern. For example, 1648 years of the peace of Westphalia is a modern national foundation of world pattern, and it has obviously cannot do without war. After tumbling across Europe last cruel war for thirty years, is the practical base and construction, not thirty years war was not the first world patterns of modern nation states.

In this sense, the thirty years' war is a revolutionary change since the Crusades of the wars of religion, by the modern world order it shape, the shape is different in the Peloponnesian War Greek city-state era of world system, is also different from the Rome and national expansion and colonization of classical China and Rome empire the two element structure, and even more different from the medieval theocratic regime. This war is between a modern sovereign state national war, even though some of the so-called holy Rome Empire and various principalities, feudal collar and City Republic is involved, but they are in this war gradually decline, the rise of the emerging of the modern nation-state. So the war and peace in the thirty years' War, is on the subject of war and peace between nations the first story, the story of the future will also continue to larger scale and brutality of the stage, and then re shape the different modern countries and the new world order.

From the theory of structure, the theory for this process is Grotius, a series of his works, especially the "war and peace" is right thirty years war and the peace of Westphalia summary of theory or theoretical version. He is about war, peace and the right right right of freedom of the seas, fully demonstrated the spirit of the times, to construct the mechanism of the modern state is different from the religious right. The key of this right of politics is not the classic Aristotle, nor Aquinas's theology, or the Church of Dante Empire Theory, but new based on rights of war and peace by natural law. As a Holland jurist, Grotius especially pay attention to the open ocean freedom right. Despite the Thirty Years War basically is launched in Europe in the hinterland, but the core of its theory construction is a marine free grotius. This looks a little fantastic, but profound in meaning, it signals the arrival of British and American maritime hegemony in the world for decades or even hundreds of years. The other two continental thinkers is Bodin and pufendorf. As early as Grotius Baudin sovereignty on strengthening national sovereignty characteristics ( appear, to sovereignty in the form of the Beagle to show far, deep, Grotius's sovereignty is very thin ), and Pufendorf as Grau shows the Stoics successor, a full range to deepen and systematic the Grotius. Although their thoughts in a different Hugh Law Schuth, but because of its terrestrial nature, does not understand the marine law of war and peace, do not understand the ocean for the decisive significance in the modern world, therefore, from the large and large scale historical practical point of view, it is difficult to and Grotius shoulder to shoulder.

(two) from the national war to the people's War (revolution) and its significance for modern constitutional

In front of the transformation, and from the wars of religion to the national war, of course, that is, the peace of Westphalia is a great first round mark this transformation, can open the significance, but the process is far from complete. Dual power of religious war and the national war competition with each other in the early modern hundreds of years still, they collide, conflict whipping through process of early modern, war, religion (between Catholic and the Protestant) which is mainly the period and national three. For example, the Lutheran by German Protestant religious war, Calvin as the expansion of the war and the founding of the PRC, the conflict between church and Catholic, Protestant British, the conflict between the French Catholic and Hugno sect, the Maharaja main country, each kingdom the country as well as the Holy Rome Empire fenfenhehe, up until the glorious revolution, the French Revolution, Napoleon's war and the first French Empire, the rise of German nationalism, the rise of the British Empire, etc.. The early history of the modern western content is very rich, but in my opinion, they are after the construction of Grotius, the peace of Westphalia era of the second round of the world pattern. Although religious ( between Catholic and Protestant and Protestant) and religious war is one of the most important is the factor, but it has clearly and late medieval religious wars have substantially different, national factors gradually replaced the consolidation of Christian theocracy "war". Enter a secular building their own national "time of war". The modern state and constitutional system or the state, as the period of the war of the motivation and purpose.

With the strengthening of religious disputes and royal, this period (after Grotius era) war has taken on a new significance, they and the construction of modern state, and the modern constitution and constitutional, the more closely linked, so from the front constitutes an important component of the modern country and the modern constitutional science. Early modern and nature of the war's nature, in fact, greatly promote the modern constitutional ( constitutional) construction. After the wars of religion is not to build a modern nation-state, Grotius era war although already get rid of religious rule all the land status, but this time the main purpose of war or national world order, the emphasis on the international pattern. Although the subject is the modern country or the sovereignty of the Kingdom, but not on the essence of modern country puts forward further demands, not asking too much for the "who, what country country" question. So, can this war nature as a "thin" based on the nation state as the unit between the structure of the world the first basic pattern and order of war. From the deep political and constitutional law perspective, this war and modern constitutional genesis or external, is to provide a background of world order. As for the structure of the nation itself, as well as the form and content, constitutional motive and purpose and so on, is the Grau shows rights of war and peace, the right time which are not solved, although Grotius in the sovereignty issue, also discussed the problem of natural rights, the social contract, republic system etc..

After Grotius in times of war and peace, along with the path of the peace of Westphalia, but its nature has a major change, namely from among nation states shape the world war, into the people's war. The people rather than the monarch, kings and princes, become the main force to the new round of war, the war between the countries, the Lords of war, became a people's war. In this way, a series of major constitutional problems arise. Why do people want to join the war? Is the basis of the what rights of war Where the purpose of the war and legitimacy? What is the relationship between war and peace? If the war is to create a modern state, so, "whose country"? The reason is the so-called national what People's participation in the war and peace, and even participate in the national construction of what is right? What constraints monarchs war ambition? war created is whether the government and defend the sovereignty and what They are how to construct? Whether the people involved and the decision of the state to build the right? how participation, is entrusted, election, or sign a contract we see major, this series of questions, all war triggered from it, at least by the war inspired, come close and with the outcome of the war and peace, and all this obviously is the constitutional issues, the study is the modern constitutional.

Because the people of widely mobilized, and participate in the war, which makes the nature of the war changed, thus awakened people. In a series of large scale, delay for a long time and bitter bitter war, people have paid a heavy price, they started making the national modern consciousness, not just for the monarchs and princes of power, wealth, ambition and self willed to fight, or is no longer just fight for the nation, for the past glory and new land battles, but to fight for the people themselves, for their own rights, their country and nation. The most typical is the English Civil War, during the French Revolution and civil war, civil war in the Holy Rome empire. Britain, France and later Germany, the three dominated the European powers, transforming their civil war and peace and the nature of the war has a close relationship. The civil war has spawned a variety of political theory and constitutional theory of modern politics and ideology, such as Hobbes came out in the English Civil War, Harrington's positive republicanism, contract theory and the Rock and government theory and so on, are related to the English Civil war. And the French Jean Bodin, Bossuet, Rousseau thought, it also belongs to the category of political constitution. It has formed two basic paths, namely the British and later American path and France and later Germany, Russia's path. Of course, more important is, these theories and ideas of different paths of mature, also need to be forged from war to the revolution in the history of the oven.

The author analyzes several changes of the nature of warfare, from a religious war to the war between the States, from the national war to the civil war, can say, is a step by step into the author of this paper is to discuss the topic, namely, war and the constitution, or early modern war and modern constitutional system relationship. We have already seen, as the war people and domestic form the shape of modern constitutional state has become increasingly prominent role. However, I must point out is, the war itself is not enough to achieve the modern nation - national, not enough to achieve a modern constitutional government, sovereignty and the rule of law government. War is the transformation of modern society power for, but this power was also need locomotive, that is revolution. That is to say, from the civil war into a revolution, from the transformation of people's war for the people's revolution, this is a great "revolution" of the war a change from ancient times to the present, change a snafu, change a completely changed the course of human history. Can say, the foundation of any modern country, any kind of modern political and constitutional construction, have experienced a people's revolution, Britain, France, America so, both Russia and China. As Marx said, revolution is the locomotive history. Of course, "the revolution", this is about the war, revolution and the founding of a deeper problem, therefore, the author will discuss in the following. Here the author will first analyze from war to the revolutionary transformation and its historic significance, especially the genetic significance of constitution or constitutional significance of modern.

Here, there is a problem: why the war becomes revolution? this and this process of change of main force or assume the task of investigating, namely who war is the defend the masters of the country the past era of war are masters of rulers or ruling class, people are passive participants, but through the war, they began to. War is transformed into civil war, mainly with the interior, which is related to a country's political structure and nature. In this way, the war is no longer a diplomatic level, but the interior level, is fighting for power. This rule is not only the war powers, is not merely rely on the victory of the war can be obtained, the legitimacy problem here is a power. From ancient to modern times of war is just a kind of violence, violence is not the only political nature. For people, the violence of war or the ruling power, legitimacy, to be accepted and recognized, active obedience of the people, which gave birth to the modern constitutional system, the constitution. The constitution is the validity of a sovereign state, the political will of the people. Its structure, main function is to regulate the constitutional political power perpetrate whatever evils one pleases, basic rights and freedom of citizens. As a result, make the rights of the constitution, will become the primary power of the people, is the people's constitution. The legitimacy is right, there is a political justice constitutional questions, its origin from the consent of the people, or further from the public will and natural law ( this is for different theoretical legitimacy source of the constitution or national system expression).

This period of time in different countries of the civil war, look for a variety of reasons, some because of struggle for the right of succession, some for the religious belief of the monarchy, some because of the land and the dispute over the jurisdiction, but also some nobles rebelled or a peasant rebellion, etc.. In fact, these reasons are not the most important, the real reason is the legitimacy of final appeal right to rule, the so-called civil war is a fight for political legitimacy. However, the problem is, how to make the legal authority to be admitted? especially get people (include old and new nobility and the emerging bourgeoisie) wide and honestly admit it By violence? On the rights of war? obviously. Historically, the old ruling class and they have a whole set of the old system, including the military, police and other state machine, always the insolence to resist, exclusion and hit the people to actively participate in the regime, more cannot tolerate master political state constitutional rights and the Gou Jianguo regime, the legal system of power to the people, be regarded as the "rebellion" and rebellion, as a "traitor" and an enemy of the state. In this way, the two forces hostile constitutes the political battle, so that the civil war into political revolution, the people's war will inevitably lead to people's revolution, because the people have become masters of the country, the exercise of national sovereignty and the right to rule.

From the development theory of ideological point of view, it can be said that this period was a golden age in human history, only the classical Greece and Rome times brilliant idea can match. The contention of a hundred schools of thought in early modern times, since the Renaissance in Italy until the 18 century, experienced the enlightenment stage, in the national theory, political economy, moral philosophy and civilization evolution theory and so on, with the English Revolution, the French Revolution, USA revolutions and the Napoleon war and the German National Awakening, the emergence of a large number of different thought, temperament extraordinary, profound theory, profound thinking, from great thinkers and theorists purport, or between the spirit of confrontation or view, emerged a pioneer and founder of school and the theory system of many thoughts, they still shine as a beacon, ahead of human. These theories of the story, the author of this is not to say, only the constitutional theory and political theory point of view, despite the defender of the state, such as Jean Bodin, Hobbes, a Roman Catholic theocracy guardian, as Bossuet, Maistre, advocates a Protestant, Lutheran, such as Calvin, but the mainstream is the people's champion this period theory. Even if the above theory, it is not totally against the people, but that represent the people's rule, the sovereignty of the people, the people's constitution, the people to make political contract, organization of the government rights, people to resist tyranny. Against arbitrary power, people have to defend life, liberty and property rights, people have not even revolts from right and so on, these are natural rights, natural law is to give people the right divine. These basic ideas and thoughts, after the enlightenment, has increasingly become a common sense to become citizens, must comply with the rules of political life. So, Rousseau, Voltaire, Rock, Paine became advocate and revolutionary mainstream ideology in this period defenders.

It is in these ideas under the advocacy of revolution, become the people's war results, right shift war as revolutionary power, legitimacy of revolution with political and constitutional, natural law and advanced method that is God the legitimacy of law. Based on the above theoretical basis, we see in modern countries, early modern, almost without exception, have changed the people against the old system constitution and constitutional revolution. In the UK, King Charlie Thi was sent to the guillotine, after years of civil war and radical republicanism movement as well as the temporary restoration, the outbreak of the glorious revolution. Shortly thereafter, the revolutionary war in the North American colonies combustion side of the Atlantic, American revolution is a great transformation of modern government, said this revolution was transformed from the war -- the war of Independence -- to. War and revolution USA has given birth to a new republic, a new modern constitution and constitutional foundation, its constituent Republic from the people. "We American people created the United States of America", this is USA constitution at the beginning of the speech, legality and legitimacy of the modern constitutionalism and constitution, cut off and the old system of royal clan relationship, and with the people directly contact with water and Co. This is the beginning of a new era. At the same time, the French Revolution broke out, and gradually developed into a surge high and sweep forward the revolution, the revolution is accompanied by the internal and external war, but its essence is a people's revolution, the declaration of the "civil and political rights, the French Revolution declared" ( "Declaration of human rights") independent connection America declaration the people of freedom, equality, political and social rights as a modern political foundation of our country, the constituent of the common will of the people, and the fundamental rights become the French Revolution at all, the base of modern society. From the glorious revolution, the British USA revolution to the French Revolution, the three great revolution, although fundamentally different ( I will discuss below), new things but they all belong to the modernity, and the old system and the old law distinct, the revolution is only really build a modern country belongs to the people ( nation or national).

(three) in different forms of modern constitutional republic revolution and its inherent logic

From the wars of religion to the national war, around which the national war, early modern (peace) right awakened people's civic awareness, into people's war. People want to establish a people be in power in the modern state (both the Republic or monarchy) , therefore caused a series of the different nature of the civil war, and ultimately to the people. The revolutionary constituent country, this is the early modern (post Grotius era) common many powers of the fate of the country. Britain, France, American. Holland revolution earlier period (in Grotius era ) in Italy, and later revolution, and later the Russian Revolution, and the Oriental world revolution, the revolution in India, Chinese countries after revolution, history and political science from the grand view, they followed the revolution the.

War is a violent, revolutionary is a kind of violence, from the external morphology, war and revolution have no what too big difference, some revolution itself is in the form of war, some war will evolve into revolution. However, there is a fundamental difference, namely the war under a given the legal order of the violent activities of the organization, which belongs to a kind of Grotius sense of the rights of war, whether it is domestic law or international law sense, war is the law. So, without the legality and illegality of war, only legitimate ( conforming to the international or domestic law) war, illegal war is not a war, but armed separatism, mob violence, robbery (pirates, bandits, swordsmen of the Robin Hood type, local ruffians and hooligans, etc.). However, the war has just and unjust, Grotius focuses on the war, especially the justice of the war between the States rights issues. However, the civil war began to change the nature of the war, highlighting the legitimacy of the war, what is the fight for, why fight in the war, what purpose? The justice of the war is what These problems directly forced to reason of state law, forced to "what country, whose constitutional" problem.

The law especially the constitution, in a series of violent activities of civil war, the war of independence and the other, to withstand the severe test, even had the revolutionary overthrow, from the so-called war into revolution, the constitutional meaning is to start from this problem. For example, about the uprising, a revolt, about which foreign, and so on, these armed behavior, from the old law especially the national law is illegal, is the country that treason, felony, to severely crackdown and sanctions. However, due to the country and the country of constitutional legitimacy is challenged, the laws of the state is no longer the king's arbitrary will, but the will of people. That is to say, the foundation of legislation shaken, and even subvert the, then the behavior of the legal and illegal or not becomes the constitutional problem important, become the country event. The so-called war to revolutionary change, in fact this is, they are not the level of violence, organization, the outcome of the legitimacy foundation problem, but war, revolution refers to the transformation of the original to become the rebel uprising, become the national construction, finally became a national constitutional law. We see, the British and French two is the people's War ( uprisings and rebellions) guillotine monarch, is to "Treason" and restrain by law, the law is not the old law, but the law of the people's constitutional right, is making people. This is the revolutionary power.

Early modern history, from the constitutional sense, is a transformation from the rights of war to the revolutionary legal history, the underlying theme is the state of modernity. But the problem is, as the war of revolution, is an act of violence, war will eventually end in peace, transition from war to peace right Recht is Grau show international law proposition, age. The revolutionary power eventually end peace right, what is the form of system? and Grotius is without question the peace right down to the modern countries of different legal revolution for the peace, end support is a modern new country, namely the modern constitutional. A people's constitutional state constitution, a people's Republic of China, whether it is anonymous, such as Britain's constitutional monarchy, or USA, France ( federal) Republic, the national essence, belongs to the people of the state, based on the common people's will and intent, and commissioned by the contract rule and established. So, the constitution or constitutional revolution is ending the right after, is the cornerstone of Grotius era of peace in the right. Kant's "perpetual peace" is expressed in this era of theory, although the real history of Germany is far from the demands of the modern constitutional.

The war into revolution, Revolution ended in the constitution, the early modern story is far from Everything is going smoothly., revolution has the bloodthirsty nature, tangled constitution and revolution, from the constitutional revolution to social revolution, its tragic destiny throughout the early modern since several hundred years of history. From the west to the East, from Europe to Latin America, Asia and Africa, the tragedy until today has not disappeared, but continue to emerge out of their upgraded version. Below, the author only from the perspective of the constitution of this (revolutionary path different ) make a brief outline, the content is complex giant, the author here can only be selected to be. The author of the study, around the war, revolution and constitution, early modern and spread to future generations, in Western Europe and the United States in modern countries, including Russia, Japan, roughly speaking, there are three stages or constitutional moment, and can be classified into two kinds of logical path. Here the author mainly in Britain, France and Russia American, four main modern state of war, revolution and constitutional issues to be discussed. Since the 19 century, especially in the 20 century, for a series of developing countries, this war, revolution and constitution of the logic becomes more complicated and confusing, to this, the author in the next hours devoted to occur China constitutional, will be touched.

1 the war -- the revolutionary power

The peace of Westphalia did not lay a lasting peace to Europe, this time is a big rise and fall of the era, the rise of the great powers are all experiencing the pain of war and revolution, and the revolution to establish an independent and powerful modern nation state. So, there is a "war and revolution, the" logic, the constitution has become particularly important: who constitution, how the trigger. Revolution is not a dinner party, inevitably into war. We see, Britain, and France America, around the revolution of the state of war. Here are the jurisdiction of a war and revolution.

Look at the British, war and revolution in Britain, and not the start of a glorious restoration, but experienced a series of violence and unrest. Cromwell's army of the Republic is the war and revolution, naked, even with treason to King Charlie Thi sent to the guillotine, the establishment of the people's Republic of China, the British military dictatorship for decades, which have the radical revolution theory of defense, have a more radical revolution, such as digging the Imagist movement. However, the radical revolution this Britain for the Glorious Revolution ended, it seems, in this country has a long tradition of national politics, only using the restructuring of the revolution, or "revolution" end, to complete the transformation of politics and revolution, successfully protect people the results -- the unwritten constitution and constitutional. Britain's radical revolution abortion, but the achievements of the glorious revolution, the guardian of revolutionary constitutional questions will talk later, and now look at war and revolution of the USA. Obviously, due to the absence of the old system fetter strong, war and revolution America successfully created a people's Republic of China, the core of the problem it is constitutional federalism issues, "war and revolution, the", this is no doubt in American ( conservative royalists in independent after the war he fled to Canada). So, how to protect America constitution, which is the constitutional issues American revolutionary power, the problem in the time not to be resolved, until USA Civil War era, only solved. The state of war and revolution in the right, the most severe and profound, has opened up another revolution road, is the French revolution. The French Revolution was a magnificent great theme, the author only from the Constitution and the angle of revolution to be summarized. It should be pointed out, the old system of the French far more profound than the UK, and coupled with geo political, religious conflict, Wang Quan dictatorship, European center and a series of reasons, the outbreak of the war and revolution and the founding of the results, there is no English so lucky. Or, war and revolution by the French Revolution fundamentally there is no end in a constitutional system, the logic of the revolution is not complete, always in constant revolution, radical revolution, Red Terror of the vicious spiral, eventually make Napoleon the modern tyrants, establish a French First Empire, and was soon in political turmoil nearly a hundred years. Compared with the glorious Restoration England after radical republican chaos occurs and American Federal Republic of the two excellent, stable and strong constitutional nation and Empire, much less fortunate.

Theoretically speaking, since the early modern French nation theory, constitutional theory and the people's revolutionary arguments than other countries, rich, deep and long. The revolutionary and critical theory Bodin sovereignty theory, enlightenment, social contract theory of Rousseau, Sieyes's theory of constitutional rights, Jacobin people Dictatorship Theory and so on, the French ideas as modern constitutional "what kind of constitution, whose country", and the people's revolution, dictatorship, and so on, creating a series of theories, a profound influence on the later generations. For example, about the monarchy and sovereignty. The nation and national country, about people's common will and the people's constitutional right, declaration of citizen's political and social rights, on natural law and natural rights, on the formation of the national government, the suppression of counter revolutionaries, the people's democratic dictatorship, a class, violence and terror and so on, is the revolutionary movement originated in the French Revolution and practice in this field unprecedented. Completely of profundity and argumentation theory, various theories, France in the early modern theory from the wars of religion to the people's revolution to the founding, can be said to be reached the limit of human understanding, on issued, brilliant. However, from the theory of temperament and general nature, the French Revolution Theory and constitutional theory is radical, excited, the people and the revolutionary given the high hopes, the means to accomplish the whole task at one stroke, at one stroke to break out of an old world, creating a beautiful new world. For the purpose of, at the cost to take any means; for ideal, at the expense of.

The problem is, the theory is not equal to reality, a French Revolution, the biggest problem is that it is not able to complete the smooth transition of revolution, namely through solid constitutional system to settle the people's revolution the passion and the will. Although the revolution of France has emerged from the constitution, but no constitution be fruitful to implement, obtains the widespread support of the people, and the formation of stable authority. Therefore, we see, this period of France into a frenzy of revolutionary radicalism, from the constitutional monarchy of feuillant, free Republic Girondins Jacobins, until the radical republican dictatorship and bloody horror, a constitution and the constitution outline is more fierce revolutionary fanaticism and violence that, until the complete destruction, which Napoleon's military dictatorship to clear the obstacle. Of course, about Napoleon and the French First Empire, Napoleon on the war and impact on the world and to the old system of raids, is another story, no longer belongs to the category of the constitutional law, regardless of. Constitution, the French Revolution and the French Revolution theory, not only through constitutional end of the revolutionary, but into the continuous revolution destructive abyss, not only failed to build a constitutional country, it opens the way for the people's dictatorship of the totalitarian state, from the revolutionary people to continue on the Marx doctrine and the Russian revolution of the proletariat dictatorship theory, a Lenin type state and revolution, the theory and practice of soaring up.

2 the end of the revolutionary war to protect constitutional law --

Revolution, the people's constitution, which for the early modern political system, is only half completed tasks, as well as a more difficult work to do, the French Revolution is on this walk not to come out, which fell to the abyss. However, the Anglo American political system after the war and revolution, turbulence is dense willow trees and bright flowers, not only in the early modern history to open up a "war and revolution to the end of the" revolutionary road, and the "end of the Constitutional Revolution", and created the two Empire, which dominated the world of political civilization for three hundred years until today, also does not have the end. The logic about the "revolution" the end of the founding, in the three article own had more in-depth and different emphasis discussion, is a "political constitutionalism and judicial constitutionalism", one is "revolution and constitution and Chinese constitutional", one is "America of modern politics" secret "". The article dealt mainly with the UK and USA how to complete from the revolution to the end of the constitutional revolution constitutional questions of harvest, the classical theory of representation is the political theory of Rock, by Rock and the Federalists, Anglo American finished early modern constitutional part of the task, successfully makes the modern countries through the Constitution, the revolution was settled, I realized the so-called "revolution is over". From the war to the revolution, from the revolution to the end of the revolutionary, here is essentially a constitutional question, is the practice of a constitutional state justice system, from politics to normal political constitutional change.

About Rock, about the Federalists, on the American Revolution and the end of the revolution, from the perspective of constitutional occurs, the author has conducted a full inquiry, they are indeed the integrity of American constitutional ( contains two parts, the revolution before or two logical stages, namely very political and daily political and successful transformation) classic expression, no repeat, although compared to the French Revolution, they should be emphasized. Here we will discuss another war, revolution and the constitution of the subject is very close, which USA Civil War: from the constitutional sense, how to treat the relationship between the United States of America's future and fate of the war I think, there is still a subject of constitution and the constitutional road in the Anglo American War of revolution and the end be solved through revolution.

USA modern state is a recently established, it experienced in the history of the war and not many, in addition to two before World War II, the first half of the 20 century on, affect the construction of the national war only two times, once the war of independence, a civil war. Some other of war, such as the war on Mexico, slaughters the Indian wars and so on, are not the two wars as vital to America constitutional role. From the perspective of the constitution, the two wars and although American constitutional life (for example American constitutional scholar Ackerman thinks they are the two crisis USA constitutional moment ), but their nature is different. The war of independence of the revolution the people's war, although it is formally external anti British colonial wars, but the real rights of war is the common will of the people USA based, is a constitutional state constitutional act. We see, it is through this war, the former British colony of the people of the several States, are forged and together, to form a common America people in the war, and the birth of the constitutional activities, to overcome the barriers to separate the different forms of state city charter, or as a matter of expediency Confederate system, form a unique USA constitution, created the United States of america. This is a legal right to the war from the revolution, final implementation of constitutional rights American constitutional road. If the rights of war, revolution, power is based on the advanced method of natural law, natural rights and new teaching law and social contract theory, meaning, so American constitution, including a series of amendments, is the advanced method to construct a form of state system, the Constitution and judicial review and constitutional interpretation, has become the most effective means to protect USA revolutionary constituent results, thus completing the transition from the so-called political constitutionalism to judicial constitutionalism end revolution. This from politics to normal legal administration, American line's classic reflected, is the political narrative about the glorious revolution end of revolution of the Whigs to continue or upgrade edition, the advance of "modern national war of independence, the people's revolution and the founding, the guardian of freedom end revolution" road.

However, the guardian revolutionary constitutional achievements, the real implementation of the constitution, the constitutional spirit, for any one regime, it is not easy. It faced all kinds of forces from the domestic and international challenges. In this regard, I have always thought that only judicial constitutionalism is not enough, because the judicial constitutionalism and democracy general parliamentary legislation, although can solve many problems in the constitutional and political, but their function is manifested in the daily politics. When a country is in the constitutional crisis, judicial constitutionalism and democracy is stretched, desperate times call for desperate measures, very political, even into war. This is the political constitution of civil war meaning.

The civil war America, different from the war of independence, is different from the English Revolution, is the core meaning: it is a battle to defend the constitution, the guardian of freedom equality of constitution is a constitution protecting war, war, is a USA constitution spirit through the end of the revolutionary people war. Protect the constitution significance about the war, American political mature politicians are very clear, this from President Lincoln's "Gettysburg Address" and Lincoln Douglas debates reflected. Therefore, the civil war is a beacon of brandish a sword battle, is an interpretation of the constitution protect the constitution theory of war, the center is American constitution, and this war risks from the start of construction of the constitution is buried in philadelphia.

1787 years of America constituent is America people's constitution, is the product of the Federalists and the anti Federalists common struggle and cooperation, although in later added the twelve amendment, passed by the majority in parliament to consider, but the difference in principle between the two factions are not fundamentally bridge. A major outbreak of the civil war that divided, it causes the America constitution faced with a serious crisis, American people once again withstood a severe test. Although politicians and USA people seek to compromise to get differences resolved, but ultimately did not achieve peace, America constitution of the life and death, had to go through the war to solve. From this point of view, this is a major setback and failure America constitution, for peace, justice, political cannot resolve the fundamental differences, USA constitutional and no broad road provides a smooth day-to-day politics. But, in another sense, it also has a sublimation is not USA constitution, a major victory and triumph, because the civil war just day-to-day politics and everyday law failure, not American constitution of failure. It became the very period America constitution, as American constitution revived, flourishing America government to re unite and America society provides an opportunity for reform.

Because this war is not to completely removed and discarded the Constitution and constitutional (Law of Russian routes like the following will be analyzed as ), but to the constitutional principle of war fighting, both sides stick to and death to defend their understanding of the constitution, the constitution is to their respective principle as a war basis, the real constitution as their war aims, so they put their lives and. For example, the southern separatist ( the word itself is the North imposed on them, they do not advocate illegal separation, but based on the separation of their right to defend the Constitution) theory master Calhoun belongs to the anti Federalists thought tradition, he made it clear that each state has the right to defend the Constitution assigned to them. These rights, such as the sovereignty of the state, and the right of states seceded from the union, is the first constitution of federal power. Therefore, the southern states had to defend these rights rights of war, therefore, they are fighting for the constitution. In contrast, with President Lincoln as the representative of the northern states, denied the South claims, that the federal constitutional power is USA people as a community power, constitution directly from the people, including the people of the southern states. Therefore, the Federal Constitution as America people's constitution, than the right of the state, higher than the right, therefore, separation, American people to defend the constitution. Since the war, both sides stick to their own constitution, then, "whose constitution, the constitution" for American people, for each American citizens, is a major constitutional question, because it is not only concerned with America national destiny, but also related to each person's life and death. This is USA constitutional moment, or even product even as the 1/4 clause of the constitution provisions of the constitutional compromise when the slaves, also be reactivated. Lincoln signed the "abolition act", so as to broaden the connotation of constitution America people, further laid the advertised America constitutional freedom equal civil rights principles.

Thus, the civil war was a new constitutional action, American people through participation in the war to further clarify the constitutional principles, reached new consensus. The constitution of a new, hand is added thirteenth new constitution amendment abolished slavery, cancer of the old constitution, stipulates the Negroes to enjoy equal rights of citizens; on the other hand is re established the United States of America's national foundations, reverse the dangerous state splitting tendency, from the constitutional state level once again established the free state. These are obtained through the great war, the so-called new freedom. But, why want to say that this war is an end of the revolutionary constitutional rights? whose key lies in this war did not make this nation disintegration, but further strengthened the national cohesion, the guardian spirit of the constitution, which the liberal constitution of freshmen is not completely negative by European that war - revolution to achieve, but bottles. New wine in old bottles, still adhere to the authority and the the old constitution dignity, reiterated the buried or somewhat lost. Through the war of pain, aroused the enthusiasm of the people, the resurrection of the original spirit. This is the appearance of a people, in the spirit of the constitution. Especially of reconciliation and peace after the war, Lee's tomb was carried on national altar, so that the America constitution successfully transformed from the very moment for the daily politics, the guardian of the politicians and the people's constitution, to the court, the transformation from political constitutionalism judicial constitutional doctrine, the logic is still the constitutional the logic of the glorious revolution. This is the end of the revolutionary war and peace I called right.

3 get rid of the constitutional revolution war -- the dictatorship of the Paris commune and the Soviet Road

British and American "war and revolution to end the revolution" constitutional freedom's different, early modern and another path, namely "war and revolution, revolution" of the path. This path has two interrelated but still different form or stage. One is the French Revolution French path, it is Napoleon the modern tyrants and French First Empire, and the subsequent unrest nation for hundreds of years, the Empire and the Republic of China appear alternately, many constitution appeared, but the frequent war and revolution. Another is the road to revolution and armed insurrection is generated from the ruins of the French Revolution under the dictatorship of the proletariat in communism and socialism.

It should be pointed out, on the dictatorship of the proletariat revolution, has gone beyond the early modern political category, a kind of new things belonging to the 19 century, according to the founder of the political thought of Marx -- the historical development stage theory, which belongs to the new society, feudal society and capitalist society. But back up, can also be said that the core viewpoint of this theory in early modern especially ideological and political practice of the French Revolution was conceived. For example, Rousseau's inequality, social origin and people's common will of the constitution thought, Sieyes's theory of the dictatorship of the bourgeoisie, the French utopian socialist Saint Simon's collective cooperative idea and so on, is one of the source of the theoretical system of the dictatorship of the proletariat state and revolution. However, the Marx doctrine of class struggle and proletarian dictatorship theory and Communist socialism practice, is a huge historical narrative, the content of many, the evolution of the shape is very complex, here I am still around the war, revolution and the constitution of the subject, and discuss the problems.

First of all, Marx's class struggle and proletarian dictatorship is a violent revolution, is a one class overthrows another class oppression and political movement, it not only inherits the early war and revolution of modern logic, and fundamentally different. As mentioned before, the early modern British and French war and revolution until the state's history, are a nation and people and citizens, and the sovereignty of the people, people's constitution and so on as the center, class and class struggle does not occupy the core position. Although the West Jess proposed third grade class dictatorship, but this level in him, refers to all the people, it is still a national or a people's revolution. But Marx is different, he strictly differentiated nature of different class, the class struggle and proletarian dictatorship as revolutionary violence of the engine and the core mechanism, that the violence in modern history, both the uprising, rebellion or armed revolution, must take the leadership of the working class, and the abolition of the bourgeois state violence government as the goal, to establish the Communist oriented. In his classic "French Civil War", Marx focused on the Paris commune, thinks the violent uprising that communism is the proletarian revolution, the beacon.

Here, the history is necessary to outline a "dictatorship" the political and constitutional concept. In this regard, the German constitution, Karl Schmidt had a thorough analysis on "history" of the parliamentary system in one book, the evolution of three historical stages of the dictatorship. The first phase of the dictatorship of the proletariat is set up a special system of the Rome Republic, refers to a specific period of time dictator exercised lawful dictatorial powers. The second stage is the French Revolution and the German imperial period of a sovereign dictatorship, a special right of sovereign beyond the constitutional law. The third stage is the Marx and the Marx doctrine of communistic dictatorship, this is a beyond class dictatorship in constitutional law, taking the Paris commune as the example. Then Lenin took the dictatorship of proletariat and the Communist Party as the party construction theory of the vanguard of the working class and practice together, the Soviet Union to become the national system, it is in order to destroy the bourgeois and feudal and other exploiting classes, and eventually communism classless society for the purpose of. We see, the theory and practice of the class struggle and proletarian dictatorship in the Anglo American world, there is no substantial influence, mainly in the European countries, namely France, Germany and Russia (former Soviet Union ), and the third world developing country in modern China, of course, is also a main stage.

Secondly, the early war and revolution of modern, is committed to building a modern nation (National) , therefore the state is the central content, regardless of the war and revolution to take what form, using a mild or tyrannical means, the ultimate goal is to develop a new constitution, establishing a a new political nation, create a new. So, there is a war with revolutionary power, and ultimately comes down to people's constitutional authority of the constitution, therefore, construction rather than destruction, is its basic properties. However, political and revolutionary class struggle and proletarian dictatorship, is destructive, not to build a modern country, not to the state as the fundamental purpose, so it's not what the law of war and revolution, on the contrary, they appeal to damaged the bourgeois constitutions and national, legal structure the destruction of the bourgeoisie, to start the construction of a proletariat and mankind emancipation of the new world. This point in Marx's "Communist Manifesto", with the revelation of poetic language in general have said very clearly: "the Communists disdain to conceal their views and. They declared: their purpose only by the violent overthrow of all existing social system can. Let the ruling classes tremble at a Communist revolution. The proletarians have nothing to lose but their chains. They have a world to win." Marx in "the French Civil War", through the analysis of the Paris commune, the declaration as a similar to the biblical story of the Exodus, example to describe. As for Lenin's "the state and revolution" is the Marx's thought of Oriental, further solid state nature of the dictatorship of the proletariat.

We saw in the political imagination and practice of revolution that come down in one continuous line of modern extreme radicalism, constitution, completely abandoned, or abandoned to a marginal position. That is to say, in the later Communist constitution as a compromise between the socialist countries there, playing a service to the class struggle and proletarian dictatorship of the instrumental role or national form of decorative effect. The purpose is to achieve more legitimate to class struggle and dictatorship of the proletariat, in order to destroy the enemy class, the bourgeoisie and the other all the exploiting classes, in order to realize the socialist, Communist political, economic and social goals and mission. This so-called Paris commune charter and socialist constitution, and Anglo American routes as well as its leading Western constitutional principle, constitution and civil rights, separation of powers and checks and balances regime, judicial independence and so on, no doubt to be different.

In short, from the perspective of early modern point of view, on war, revolution and constitution, here involves a modern constitutional mechanism and theory. With the rise and decline of early modern history and the great powers, the constitutional genesis is divided into different historical stages and each stage theory, and evolve different path and theory and practice. Although many problems of composite cross together, historical logic is not unidirectional can cover, but the historical logic is still a basic coordinate system. Before Hugo Grotius era war mainly as a religious war, Grotius era is a watershed, it marks a preliminary construction of national world system based on, then after Grotius era, although the wars of religion still plays an important role, but the project has evolved between countries war, countries began to become the main, the war began around the nation building, reason of state and national interests from the fundamental operation. Further deepening of national problems, leading to national sovereignty and ownership: whose country, what rights legitimacy around the country, war form from the war between the states into civil war, civil war aroused people's national and constitutional consciousness, and the people's revolution began, the founding become Grotius era.

The people's revolution is a great epoch-making incident is different from any form of the history of the revolution, the revolution and the constitution is the two Century Center, people's revolution and the founding of the early modern is the theme of the greatest, the subject thoroughly laid the foundation of modern society. But what is the goal of revolution? What is the essence constitution The people's revolutionary constitutional state formulation is what the constitution, is building what state? around this fundamental question, and the evolution of two completely different path, one is the common construction of "revolution" end of constitutional path, a political system is the French and Russian extreme revolution or the revolution. Concretely speaking, there are three revolution model, one is the glorious revolution in England constitutional system, one is American "revolution" end of constitutional system, there is a French constitutional. Three great revolutions in human history, has its own characteristics, and are not accomplish at one stroke. Britain experienced after radical republican revolution counter revolutionary restoration, USA later also experienced the baptism of the civil war, but in any case, the Anglo American eventually crossed the difficult setback, the achievements of a be as solid as rocks constitutional ( written and unwritten constitution ), and the French Revolution is stuck in the mud, it did not go. Moreover, from the French Revolution failed constitutional, but also gave birth to the Paris commune and the anti constitutional road in Marx's class struggle and the dictatorship of the proletariat, the road all the way down, while shaking heaven and earth, but also staggering.

Three, Chinese modern constitution of war, revolution and constitution

From the early western modern into Chinese history, I'm not talking about the war China ancient history, but to explore the war, revolution and constitutional issues in modern history. Say, the start of modern China history is by the start of the war, as we know, this is humiliating opium war. The war made China new history, we started a new era. The so-called new age, mean the beginning of a new political system, legal system and morality. From the historical logic macro point of view, since the Opium War, Chinese history, very similar to the western "early modern" process. The Crusades as war, like the Opium War, are open the door of the modern war, although the cause of the war, the process and the success or failure of the outcome is different, but the war and politics, and the history of relations is similar, the battle is civilization, have contributed to the change from ancient times to the present.

(a) Chinese in modern war power

Since the Opium War, modern history Chinese (early modern history and modern history or the author called) full of wars and various outcomes, leading to Chinese history. The first Opium War, the second Opium War, Jia Wu

War, the Eight Power Allied forces invaded and so on, these wars from the morphological point of view, basically belongs to the state of war, but the war between the States has different properties from the peace of Westphalia era among the western countries at war, the war between nations are not modern national significance, but a traditional Eastern Qing Empire ( old Empire) country and western modern ethnic war, is the western countries to colonialism on the old imperial aggression. Thus, the war in the author's opinion, it has the following two meanings: one, this is Chinese and Western civilization and civilized system battle; second, this is ancient and modern and western, modern and classical Chinese. In particular, the dual nature of this war and the war of the ancient and modern Chinese and western, with the failure of the Chinese a full-scale war, fundamental changes have taken place in the nature or weight, that is from the western war occupies the dominant evolution for the ancient and modern war occupied the leading. Therefore, Fei Zhengqing put forward the so-called result in modern China change "stimulus response model".

Modern China foreign war is a big problem, involves many important aspects, such as the Wei Yuan "Haiguo" the "Division Skills razed razed to the system" to the Westernization Movement, the reform until Kang and Liang, and war related the author only with a pen. Here, only the relationship between the level of war and the constitution to discuss. The author thinks, this level of the problem is related to the modern China most important problems, because it involves modern Chinese nation building. Opened by the Opium War and not between countries of international order, international relations is not China and Western equal communication. For Chinese, this war and a series of wars, the fundamental meaning is through the external stimulus, stimulate the change from ancient times to the present Chinese, namely the war opened a path for the establishment of modern Chinese China. Although the road twists and turns, humiliation, but after all, for the modern construction of Chinese cleared.

So, how to look at the war right? The author thinks that the right with quasi - Faria and properties, or East West Faria. Here the "quasi" has two meanings. First, the Chinese with Western powers signed a series of war and peace, such as the Nanjing treaty, the treaty, the Treaty of Beijing, Tianjin treaty, the Treaty of Shimonoseki, Xin Chou treaty and so on, they made Chinese and western international relations, has the nature of the semi colonial, inequality, injustice, especially for Chinese namely the Qing Empire, is humiliation, passive, they are not the same and based largely on many treaties, relatively equal rights after Grotius era of western international order in the treaty. The Qing Empire and the western countries to sign the treaty is not equal, sovereignty is infringed, humiliate the country and forfeit its sovereignty. However, these contracts, the treaty is the sense of international law binding treaty. Second, in fact, the Qing Empire is the classic Dynasty system, does not have, even unwilling to bear the "sovereignty" or sovereign rights. That is to say, the old system concept of the world and the tributary system based on it, not the modern state system, therefore, the so-called western war, this war, and war is not a sovereign state, is also not possible to construct a modern international legal relations between the Chinese and Western pattern.

However, the external war has fundamentally changed the old system in the process of China. In order to protect the old system of war, has led to the disintegration of the old system, realize the change from ancient times to the present China itself, the birth of a modern Chinese, namely the modern national sovereignty of the people, this is the war of real right meaning. This is a "quasi" process, is a Chinese modern history, war is the great historical process of a force of impact, thus aroused China vitality, namely foreign against western colonialism and oppression, the pursuit of an independent, equal sovereign state, the change the old traditional system, realize the people's sovereignty and constitutional democracy. The two themes together is the establishment of the New Republic, this is the war legal foundation, the modern political issue, it belongs to the world, is a modern enterprise. From the Opium War to the establishment of the Republic of China, this is a great grief, and glorious history, the story was capable of evoking praises and tears to the gods and spirits. A series of Gede reparations of war peace treaty, destroyed from the outside of the Qing Dynasty system, which promote Chinese internally generated a powerful appeal of a reform, the change law is the ancestor of law, is the dynasty empire of old, and to establish is a new, modern sovereign state constitution. Foreign wars and the constitution so together.

Reform is the consensus of the whole nation, but the key is to become what method, what is the new legal system construction? can be said after the Opium War China history, is carried out around the theme. Thus political revolution and the text of the constitution of Kang Youwei, the late Qing Dynasty oneself of constitutional monarchy, then a provisional constitution of Sun Zhongshan's revolutionary party, Yuan Shikai's constitution, and other a series of constitutional system.

Until today, Chinese still in the modern national constitutional system construction process. From the point of view, there is a major change, fundamental changes have taken place in the external war and power, is the war topic evolved from foreign wars for internal war, the civil war became an important part of the modern China. This transformation of logic, in which analysis and in front of the early western modern war form evolution is consistent, namely from the war between the states into the national internal war, civil war become substantial forces determine the state constitution. Although, in a fairly long period of time, China and external powers of the war is still continuing, and almost always end in failure, the war and peace is still not equal, humiliate the country and forfeit its sovereignty. But these are not the fundamental problem, they are only in the extent aggravated changes within the China, further causing and promoting China civil war, but war is not a general sense of the internal division, rebellion, and armed rebellion, even with the warlords, a large number of examples are cut according to the war, but the mainstream they are not Chinese modern war. The main China modern war is revolutionary, that is to say, from a foreign war to the civil war, to the revolution, this is China near modern history and modern history of the early Western followed the common rights of war logic.

(two) the revolution war power

Concerning the revolution and the Constitution and constitutional founding relationship problems, the author has been discussed in previous studies. Of course, the paper does not cut in this dimension war, it needs to be pointed out is, the war is closely related with the revolution, the Constitution and constitutional state. From this perspective, the early modern Chinese and western have a from the external war into civil war, and the civil war into a revolution, and then into the problem of the. "External war, civil war, revolution, the founding of the nation", this is the modern political logic, modern history Chinese also follow this logic, but as a developing country, the experience of external war is more aggression and oppression of the western colonialism injustice, inequality, and the internal war is to overthrow the corrupt Qing dynasty rule, the so-called "anti imperialist, anti feudal is Chinese core theme of modern".

Look from the state occurs, there is a civil war into war rights revolution, war and forced to sign the Treaty of inequality, does not have the constitutional significance, to achieve Chinese modern political transition, play a decisive role in the civil war, civil war is Chinese constitutional occurred primary school. Of course, the civil war in China long-standing, even since the Opium War, all kinds of civil war is also filled with a large number Chinese modern history, such as the peasant uprising, warlords, armed rebellion. But the war at home do not have the constitutional significance, even the most just continue to this kind of thing in the system of traditional Dynasty, even Losers are always in the wrong, change dynasties, also does not have the modern constitutional significance, therefore, the evolution from them without modern "revolution" of the law. The author believes that, in the China modern history, only those who have the demand of the construction of modern national new or modern political system and ultimately to the founding of war, has the revolution or the meaning of modernity. Of course, here called the constitution, not necessarily in strict accordance with the western standard of form to understand, but is a contract, articles of association or consensus, but its substantive connotation is to establish new political body. This war has revolutionary significance, has the revolution war right value.

From the above issues, the peasant uprising, warlords, the rebellion and so on, although it has under the old regime against the legitimacy and rationality, even with the traditional sense of the meaning of revolution, but does not have the modern value of revolution. For example, the Taiping Heavenly Kingdom, the Nian Army, and so on, various warlords, armed and so on, they do not have legal significance of modern revolutionary war. A series of insurrection, riot Xin Hai revolution as well as the launch, and the Communist Party led an armed uprising, revolutionary insurrection and so on, but with the modern revolutionary war legal significance, because they waged war with the establishment of a political body new demands, and finally through the wake, mobilize people to participate in, into people's revolution, and build a different version of the Constitution and the national, historical narrative, belonging to the state, for example, the provisional constitution of the Republic of China the Outline Constitution of Chinese Soviet republic. To the old system, old law, they are not revolution, rebellion, revolution, the logic and the logic of Western common law countries is consistent.

Of course, there is another way of revolution, namely the peaceful evolution or reformism, not necessarily through violence, war and other means. We see, in the early western modern and China modern history, are also a variety of non violence, non modified revolutionary war, such as the constitutional movement in the late Qing Dynasty, the British 19 century several parliamentary reform. However, the total or from the dominant trend, through the war of revolution, especially through war and revolution have aroused people's movement, become the dominant mode of modern constitutional constitutional state. The English Revolution, America revolution and the French Revolution and civil war, all war especially closely related. China is even more so, the constitutional reform in the late Qing Dynasty and Kang Liang ended in failure, then be raging like a storm tide of revolution, war become the most effective means of revolution. Through the war, especially the revolutionary insurrection, completely broken, wash away the old world, from the old system, building the new regime, the new world, this is a century of enduring slogan. The two part of the constitution of the Republic, were set up in the revolutionary war under the jurisdiction of agitation.

(three), and the end of the revolutionary war constitution right

The two constitutional road about revolution and constitution and constitutional founding spirit, namely the end of the American Revolution the spirit of the Constitution and the law of Russian continuous revolutionary constitution, the author in a previous study, have done a full exposition, here just make some supplement, namely from the rights of war view of occurrence of China revolution science. We know, Xin Hai revolution is achieved by an armed uprising in the form of revolution -- the Republic of China, is Asia's first Republic, through war seemingly achieved the purpose of founding. In the theory of law, constitutional initiative, revolutionary exit, very complete period, it should be a daily period of constitutional construction, namely from the spirit, is engaged in the construction of system end of revolution, this is the constitutionalism and rule of law. However, the problem is, Xin Hai revolution created by the constitution is not reliable, or say, although it has its name, but not widely recognized by people, and failed to reach a real people's contract or charter, especially not legal to solve the old problem of system, especially the reformist politics the problem of the old system of constitutional change, does not solve the problem of ancient and modern system and the new system.

Therefore, the "provisional constitution of the Republic of China" did not bring peace, on the contrary, it from the day, is closely related with the war. Around this constitution, month after month and year after year of the war, the war and protect the constitution become the excuse, but behind them, it is China modern history "reason of state" dispute: whose country, what kind of regime originally, in accordance with the general social and political process, this argument is by way of contract, by the people through independent contracting mode, through democracy especially the democratic representative system, and even the way of referendum, in short, is through peace, freedom, rational law constitutional a. "The country, who decide what system of government", this is the people's own things. However, this is only a kind of ideal theory, western early modern history, this process is accompanied by a reign of terror, carry out the revolution and war. So in the revolutionary constituent, around how to safeguard the constitution, the continuing revolution or the end of the revolutionary struggles, the formation of the American Revolution and the end of France and Russia continue to two kinds of path of revolution.

China as a developing country, since the 18 century, gradually became a state called "semi feudal, semi colonial", his revolution radicalism and the state of war is even more strengthened the grim very period, along with the Westernization Movement and the failure of constitutionalism in late Qing, China it embarked on a continuous revolution Jianguo road. The first constitution of the Republic is just a paper articles, supporting it in the end or the barrel of a gun. The people's will and no condensation in the constitution, "the constitution of the Republic of China" is not the end of the war ( revolutionary violence) , bring a real and lasting. The contract in force and authority of the constitution as well as the legitimacy and did not get effective implementation, was banished. Between the government of the Republic of China and the Northern Warlords war, looked around the constitutional debate, but its real leading is strong, is the barrel of a gun. Modern reason of state Chinese, hijacked by the barrel of a gun. The north and south sides of the Constitution and constitutional amendment several times, but is ultimately between North and south two forces as well as mutually under the gun game.

Along with the national government's victory of the northern expedition, Chinese modern "who, what state regime" battle, into another form, entering a new period, namely the battle. It should be pointed out, victory of the northern expedition, the substantive says, is a sign of the Russian party system to enter the national China politics, it is not a political form of victory, but the French and Russian political victory, especially Russia party state victory. This victory is completely reversed the China modern historical process, from then on, China revolution he transferred to another logic, namely the party leading the people to realize the task of the revolution, this is the reason of state Chinese revolution. The Kuomintang as representative of the people, who have the responsibility, obligation, have the ability to represent the people, leading the people, through war and revolution means, realize the founding of a republic. So, Sun Zhongshan's proposed "the military, political tutelage and constitutional" the three stage theory, his death still think constantly of "the revolution has not yet succeeded, the comrade still needs the effort". Jiang Jieshi party state system then, is in the so-called "inherit the prime minister's" as an excuse to continue to power. 1946 formulation of the "constitution of the Republic of China" in the interior of the Ashes To Ashes in defeat to Taiwan, the Kuomintang regime corner, is still not really been implemented. But in twentieth Century 80 years, Taiwan's democratic constitutionalism had entered a new historical stage, even so, the shadow of war or civil war is still can not escape fate.

The Communist Party of China as Chinese modern revolution, political organization, the more fundamental inherits the experience of the Russian October revolution, the Communist Party as the vanguard of the proletariat, the democratic centralism, the class struggle and proletarian dictatorship and so on, completely inherited from Marx Lenin's legacy, and creatively invented the armed struggle, the countryside surrounding city, united front of revolutionary means, actively engaged in the seizure of power by armed force, the establishment of a modern national revolutionary struggle. Mao Zedong's famous "power in the barrel of a gun" is the summary of the fundamental struggle between the two parties, the Communist Party and the Kuomintang to seize state power. From this perspective, the Agrarian Revolutionary War led by the Communist Party, and we are familiar with the five counter encirclement campaign war, has the military revolution of modern war legal significance. However, since the Communists inherited Soviet system, is that the party commands the gun, and so the war right belongs to the right from the dictatorship of the proletariat, Mao Zedong summarized it as the new democratic path, and Sun Zhongshan of the Nationalist Party and the old system and the warlords war belongs to the old democratic route.

Although 1937 year began against the Japanese invasion war, suspended between Chinese party state of civil war, but does not change the nature of China civil war from the fundamental, just changed the balance of power in both sides in the civil war, changed the political and military situation. After the victory of the Anti Japanese War of 1946 years of constitutional abortion, resulting in China constitutional lost last a slim chance of survival, the remaining three years Chinese civil war, is decided the fate of the Chinese armageddon. Jiang Jieshi's defeat by Kuomintang, Communist brutal war eventually seized power, to win the revolution, built in 1949 years of glorious new China, namely Chinese history of the Second Republic -- the people's Republic of China, promulgated the Interim Constitution -- the "common program", formed a coalition government, the National People's Congress the creation of the first constitution in 1954.

Now that created a new Chinese, setting a new constitution, set up a new government, whereby the orthodoxy, legal system, learning from the Kuomintang's party state system turned to communist system, the monument to the people's heroes set in the Tiananmen, changed the "rebels" as the people's heroes, then according to the political logic of normal, should be peaceful construction Republic of China, the system of socialist countries, the so-called constitutional initiative, revolution, war began quietly exit level, "revolution" end process. This is the political logic of any one through war and revolution won power, namely the Constitution affirms the past revolution and war legal legitimacy, but also from means to end the revolution and war, and will never allow the revolution and war. We see, even if is a traditional Dynasty system, the change dynasties also follow this logic. This is the political logic of Victor, is the constitution, system logic, is also the author of the end of the revolutionary logic.

However, Mao Zedong led by the Communist Party in thirty years ago Chinese regime construction in the implementation is not the logic, political logic but constantly revolution, revolution forever, is the self denial of logic, is to continue the revolution under the dictatorship of the proletariat logic. The logic is opposite to the constitution or constitutional logic. Thus, the constitution completely dead, a modern country no constitution, no to follow the common rules, there is no consensus and contract, then only the gun will power. Therefore, the state will fall into the endless war, the so-called Hobbes state of nature, human, all captive enemy. The state reached its peak during the cultural revolution, the Great Proletarian Cultural Revolution, is Hobbes's China version of the modern state of nature, the war is the portrayal of the state, of course, on the political significance of the war here, not military on the significance of the. So Deng Xiaoping, the leadership of the thirty years of reform and opening up, the first task is to rebuild the Chinese "Leviathan", and then to Rock's "theory of government", which of course need a China version of the "glorious revolution". We are short-sighted, just saw the so-called economic reform of socialist market economy, and national wealth rich, and so on, do you not know that this is just one aspect, and on the other hand? but, if it is a political life, this aspect will grow up, will transfer not to people's. I wish Chinese this thirty years and thirty years in the future, we can have a "natural state, Leviathan, the glorious revolution, the government" theory China version of the story.