2.1. Historical contexts: Germany and China after the First World War

In 1912, the last imperial dynasty of China, the Qing dynasty was replaced by the Republic of China. Although the new regime claimed to be a republic, it was not really a substantial political body. Several constitutions were drafted before and after 1912. However, in the absence of a mature and widely accepted constitution, the constitutional practices only led to chaos and political struggles among different parties. For a state, a constitution is its foundation; for politicians, to draft a constitution is to gain discursive and substantial power in domestic politics. In addition to the top-bottom action of constitutional drafting, the Federalist Movement (Liansheng zizhi yundong 聯省自治運動) brought about constitutional practices at the provincial level. At the same time, the rise of the social fields or social forces since the late Qing brought about the rise of civil or professional associations (Xiao-Planes Reference Xiao-Planes, Balme and Dowdle2009, 45), which also played their own role in constitutional practices at the provincial level. Thus, the provincial and the professional forces interacted with each other in China’s constitutional practices in the early twentieth century (Xiao-Planes Reference Xiao-Planes, Balme and Dowdle2009, 46). China’s chaotic situation at that time also hastened many intellectuals to reconsider the possibility of a new, true constitution. In addition to the government-sponsored constitutional drafts, various intellectuals provided their own versions of China’s constitution, including Kang Youwei 康有為, Zhang Taiyan 章太炎, and Zhang Junmai. A former student of politics, Zhang Junmai began his intellectual and political journey as a politician and pioneer constitutionalist in the 1910s and 1920s. First, he was involved in various political activities in the 1910s and 1920s, including criticising the Yuan Shikai government and later participating in anti-Yuan Shikai activities, working for various levels of the government (first in his hometown, Baoshan county, then for the Zhejiang provincial government), being involved in politics in the Beiyang government, and so on. Second, his political activities were also intertwined with his observation of politics in Europe with other intellectuals including Liang Qichao. Third, after examining the political and economic models of Britain, Germany, and the Soviet Union, in 1922, Zhang Junmai drafted one version (甲種) of the Guoshi huiyi xianfa caoan 國是會議憲法草案 and also published a book called Guoxian yi 國憲議, providing further explanations of the Guoshi Constitution. Another version of the Guoshi huiyi xianfa caoan (乙種) was attributed to Zhang Taiyan (Cen Reference Cen1933). According to Zhang Junmai’s own account, Zhang Taiyan’s version of the Guoshi Constitution was also drafted by Zhang Junmai himself at Zhang Taiyan’s request (Zhang Reference Zhang2006, 6). So, it shows Zhang Taiyan’s blueprint for a Chinese constitution. Interestingly, the Guoshi huiyi was organised by the joint Council of National Confederation of Commercial Associations 全國商會聯合會 and the National Confederation of Educational Associations 全國教育會聯合會. The representatives were from civic (professional) associations in various provinces, including commerce, trade, education, agriculture, industrial, press, and lawyer’s associations (Cen Reference Cen1933; Zhang Reference Zhang2006, 6; Xiao-Planes Reference Xiao-Planes, Balme and Dowdle2009, 46). Although we cannot conclude that the two versions of the Guoshi constitutions absolutely represented the voices of the professional associations, since the professional associations themselves were different and both Zhang Junmai and Zhang Taiyan had their own political visions, at least the articles in the constitutions were not against the interests of the professional associations. In fact, in both versions of the Guoshi Constitution, representatives from the professional associations can be candidates for the Senate. Moreover, as Fupeng Li argues, Zhang Junmai’s version of the Guoshi Constitution “translated” the social rights in the Weimar Constitution into articles on shengji 生计 (economy) (Li Reference Li2020, 134). Such a legal transport also shows that Zhang not only emphasised the social forces as represented by the professional associations but also had his focus among the social forces on the economic. The drafting of constitutions also became a battleground for various groups to fight for, or at least claim, their interests. Zhang Junmai’s emphasis on the social and the economic can also be linked to Zhang’s later treatment of the relationship between the state and professional associations, which was reflected in his translation of Carl Schmitt’s article.

The political vacuum created by the lack of a mature constitution hastened Zhang Junmai’s rethinking of what is true constitution, what is true law, and what is true politics. At this point, Germany became the focus of Zhang’s attention. In fact, in the development of Zhang Junmai’s political thought, there was a shift from the British model to the German model. Why was Germany so attractive to Zhang Junmai? There are three reasons. First of all, Germany and China at that time shared similar historical and political circumstances. Second, because of his own emphasis on ethics, Zhang Junmai appreciated the ethical dimension in the German theory of the state. Third, Zhang Junmai’s insistence on true politics and state sovereignty inclined him to readily accept Carl Schmitt’s theory of the political, and his emphasis on a state’s ability to solve difficult problems in times of emergency.

From 1918 to 1919, Germany was trapped in a chaotic situation. After being defeated in the First World War, the Second German Empire collapsed. During this period, both the sovereignty of the state and its legitimacy existed in a vacuum. Political theorist Hugo Preuss was then asked to draft a new constitution, which was later called the “Weimar Constitution.” As a compromise, the Weimar Constitution was far from perfect and caused many problems.

The situation in China was similar in many ways. The constitution had become a tool used by politicians to carry out their own plans. This constitutional crisis in modern China pushed Zhang to reflect on the determining power of the constitution or the law. In his search for resources to inform his deliberations, the Weimar Constitution became an important precedent for him.

From 1919 to 1921, Zhang Junmai stayed in Europe for three years. In August 1919, the Weimar Constitution came into force. In his book, On Political Phenomena of Social Democracy in New Germany (Xin deguo shehui minzhu zhengxiang ji 新德國社會民主政象記), Zhang Junmai encloses Hugo Preuss’s photo with Preuss’s signature and written greetings to him, dated 23 December 1919, as well as Preuss’s subsequent letter to him. Thus, the previous scholarship has concluded that Zhang visited Hugo Preuss on 23 December 1919 (Weng Reference Weng2010, 84; Liu Reference Liu2003a, 56; Li Reference Li2020, 136). In April 2020, Zhang Junmai published his Chinese translation of the Weimar Constitution (Zhang Reference Zhang1920, 39–84), with the hope that Chinese intellectuals could read it “ten thousand times” (Jeans Reference Jeans1997, 33; Liu Reference Liu2003a, 56). As mentioned above, we also see the influence of the Weimar Constitution in Zhang Junmai’s version of the Guoshi Constitution.

2.2. Intellectual background: Zhang Junmai’s reflection on politics

However, is a written constitution enough to establish a new politics? Zhang’s answer is “No.” Zhang realised the limits of constitutions and began to reexamine the meaning of politics. By emphasising the substantial content of politics, Zhang hoped to transcend the formal level of politics and call on the truth of politics. In 1923, in a lecture entitled “The Internal and External Politics” (Nei de zhengzhi yu wai de zhengzhi内的政治与外的政治), Zhang Junmai says:

What is politics? What is the truth of politics? This is the most fundamental issue pointed out by Zhang Junmai. After a reflection on political practices since the establishment of the Republic of China, Zhang gives his conclusion:

In Zhang’s opinion, political practices so far have only produced “paper constitutions,” “formal systems or institutions,” and “stagnant rules and laws without progress”—all of which are not politics. Zhang says, “Even if we name them politics, they are only external politics or superficial politics” (Zhang Reference Zhang2006, 316).

Thus, “the so-called law procedures or systems,” are mostly “only paperwork, not the crystallization of the public opinion.” He continues: “Those so-called political institutions or associations are mostly bodies without souls, not organic systems” (Zhang Reference Zhang2006, 316–317).

Based on the idea of an “organic system,” which was quite popular at that time, Zhang calls for a kind of true politics, which he names “internal politics”:

When Zhang uses “internal”/“inner” and “external”/“superficial” to describe two political poles, and describes the former as “working on heart-and-mind or spirit” and the latter as “only working on paper or the formal level,” we see that his approach is similar to that of traditional Chinese philosophy. However, Zhang’s political consciousness as shown here is quite modern. The politics he applauds does not comprise hollow constitutional items, but, rather, actual political actions.

Connected to his concept of “internal politics,” Zhang also calls for a “true law.” In his opinion, there are two conditions for law:

Based on these two conditions, Zhang argues that “law should aim at allowing all people in a society to be able to freely express their will. This is true law” (Zhang Reference Zhang2006, 338).

As in his definition of politics, Zhang argues that true law is not what is written in paper documents, because once it is put into writing it becomes formal. To Zhang, the fundamental basis of law is the human mind or the will of the people. Moreover, because the human mind and the will of the people always change with time, law also changes with time. The unchangeable nature of law is that it is always based on the people’s free will. If Zhang’s emphasis on heart-and-mind is more or less rooted in the tradition of Chinese philosophy, then his advocacy of “people’s will” and “free will” is more from the tradition of Western political philosophy. Thus, his definition of law reveals a combination of the Chinese and Western traditions. All of his reflections on politics and law made him readily accept Carl Schmitt’s ideas of politics and the constitution.

3.1. New discovery

Zhang’s insistence on true politics and internal politics influenced his acceptance of Carl Schmitt’s concept of the political, although Zhang never acknowledged that he was influenced by Schmitt. On 25 December 1930, Zhang Junmai published an article entitled “Hugo Preuss (Author of the New German Constitution), His Concept of the State and His Position in the History of German Political Theory” (Deguo xinxian qicaozhe Bo Lüsi zhi guojia guannian jiqi zai deguo zhengzhi xueshuoshi shang zhi diwei 德國新憲起草者柏呂斯之國家觀念及其在德國政治學說史上之地位) (Zhang Reference Zhang1930, 69–76). This article deserves new interpretations based on my new discoveries because there are many striking similarities between this text and Carl Schmitt’s ideas on the state and the political. In the early phase of my study, I found the ideas expressed in this work very similar to those of Carl Schmitt’s book The Concept of the Political. My first guess was that Zhang had read Carl Schmitt’s work and borrowed his ideas. However, Zhang’s article was published in Dongfang zazhi 東方雜誌, in December 1930. Although the first two editions of Schmitt’s article “Der Begriff des Politischen” (“The Concept of the Political”) were printed in 1927 and 1928 in two German journals (Schmitt Reference Schmitt1927, 1–33; Schmitt Reference Schmitt1928, 1–34), the passages that are similar to those in Zhang Junmai’s article appear only in the book edition of The Concept of the Political, which was published in 1932. Such evidence shows that Zhang’s article was not derived from Schmitt’s book The Concept of the Political. Thus, I had to conclude that the striking similarity between Zhang Junmai and Carl Schmitt was due to the similar historical situations of Germany and China. In similar historical situations during the same period, Zhang Junmai, a Chinese constitutionalist and Carl Schmitt, a German political theorist, shared a similar historical sense. Both of them provided their own critical responses to constitutional crises in China and Germany.

However, a deeper study of Carl Schmitt’s works allowed me to discover one of his articles, entitled “Hugo Preuss: Sein Staatsbegriff und seine Stellung in der deutschen Staatslehre” (“Hugo Preuss: His Concept of the State and His Position in German State Theory”). It was published in the 72nd issue of Recht und Staat in Geschichte und Gegenwart in 1930. According to the author’s preliminary remarks, written in April 1930, the article is based on a speech he delivered on 18 January 1930. In this speech, he provided a brief overview of the historical development of three generations of German constitutional law.

The titles of Zhang Junmai’s article, “Hugo Preuss (Author of the New German Constitution), His Concept of the State and His Position in the History of German Political Theory,” and Carl Schmitt’s article, “Hugo Preuss: His Concept of the State and His Position in German State Theory,” are almost the same. There are only two differences. First, Zhang adds a short introduction stating that Hugo Preuss is the author of the new German Constitution, which is helpful to the Chinese reader. Second, Zhang replaces the “state theory” (staatslehre) in Carl Schmitt’s title with “political theory” in his title. The similarities between the titles prompted me to do a comparative study of the two articles. After a close comparison, my conclusion is that Zhang’s article was a Chinese translation of Carl Schmitt’s article. This conclusion suggests that Zhang Junmai must have read Carl Schmitt’s works, although Zhang Junmai never mentioned having read Schmitt in any of his own writings, lectures or interviews. Because of this, the latent Carl Schmitt in his thought has never been discovered by previous scholarship. Thus, my discovery of the textual relation between Carl Schmitt and Zhang Junmai sheds new light on the scope of Zhang Junmai’s intellectual world, as understood from existing scholarship.

In his article, “An Episode of Constitutionalism in Republican China” (“Minguo xianzheng de yiduan wangshi 民国宪政的一段往事”), Liu Xiaofeng laments that Zhang Junmai did not pay attention to the major reflections on the constitution at that time by German theorists such as Carl Schmitt (Liu Reference Liu2003b). However, my discovery shows the intertextual relation between Zhang Junmai and Carl Schmitt. Carl Schmitt gave his speech in January 1930 and revised it into an article the following April, while Zhang Junmai translated this article with its original title into Chinese and published it in his own name on 25 December 1930. The fact that Zhang introduced Carl Schmitt’s article into China so soon after its initial publication, shows that Zhang Junmai was actively following the latest works concerning the German Constitution and state.

It is not productive to simply regard Zhang’s article as plagiarism. Due to the long tradition of quoting others’ works without any footnotes in works of literature and scholarship in ancient China, intellectuals since the late Qing had not established a mature, modern attitude towards copyright. Many famous scholars, including Yan Fu and Liang Qichao, published their translations of foreign works in their own names, without mentioning the original authors. Thus, having established the textual relation between Zhang Junmai’s and Carl Schmitt’s articles, I will focus on the following questions: What does Carl Schmitt discuss in his article? What is Schmitt’s attitude toward Hugo Preuss’s idea of the state, which also reflects his own idea of the state? How does Schmitt evaluate the situation of Germany after the publication of the Weimar Constitution? Why did Zhang Junmai, after translating and introducing the Weimar Constitution drafted by Hugo Preuss, choose to also introduce Carl Schmitt’s article to the Chinese people? What points in Carl Schmitt’s article “Hugo Preuss” attracted Zhang Junmai?

3.2. Carl Schmitt’s major arguments in “Hugo Preuss: His concept of the state and his position in German state theory”

In “Hugo Preuss: His Concept of the State and His Position in German State Theory,” Carl Schmitt makes several major arguments:

First, Schmitt addresses his ideas on political concepts and the friend–enemy dichotomy, which are later readdressed in the 1932 book Der Begriff des Politischen (The Concept of the Political). (Table 1: Comparison between the first paragraph of Carl Schmitt’s article and an important paragraph in his book Der Begriff des Politischen.)

Table 1. Concept of the political

From Table 1, we see that in the two texts—Carl Schmitt’s 1930 article “Hugo Preuss—sein Staatsbegriff und seine Stellung in der deutschen Staatslehre” (“Hugo Preuss: His Concept of the State and His Position in German State Theory”) and his 1932 book Der Begriff des Politischen (The Concept of the Political), Schmitt emphasises four points: first, there is no political concept that is free from a concrete situation. Second, political concepts cannot be abstractly understood. Third, a concrete situation is often a friend–enemy situation. Fourth, political notions such as sovereignty, the constitutional state, dictatorship, and economic planning are not neutral; they should always be placed in concrete, friend–enemy situations.

Second, Carl Schmitt criticises the so-called pure theory of law or “pure jurisprudence” for avoiding political difficulties and the most fundamental issues in politics. At the beginning of the second paragraph of his article “Hugo Preuss—sein Staatsbegriff und seine Stellung in der deutschen Staatslehre” (“Hugo Preuss: His Concept of the State and His Position in German State Theory”), he quotes a popular critique of Hugo Preuss at that time:

Schmitt argues that there is no field that is not penetrated by politics; all problems are political problems. The concept of “the political” used here is “the political” in the broad sense. This means that it concerns important issues such as the state, sovereignty, and so on. People who claim to be “non-political” are nonetheless trapped in politics, though not politics in the broad sense, but in the narrow sense—politics that wrestles at the superficial level and far from the most fundamental issues: bureaucratic politics, judicial politics, and so on. Regarding those who insist on the so-called “pure law,” Schmitt argues that their emphasis is solely on judicial and administrative issues and that they never pay attention to difficult political problems. The goal of “a jurisprudence” is to legitimise the status quo. The notion of pure law works only on a superficial level—rules, institutions, procedures—and in turn, neglects the most fundamental questions of politics (Schmitt Reference Schmitt1930, 6). Schmitt’s criticism of the pure theory of law was linked to his reflections on the limits of the constitution.

Third, Schmitt emphasises the importance of decision-making. He criticises the tendency of decision suspension which is evident in the insistence of pure law:

Schmitt traces it back to the pre-war period:

To Schmitt, the “evasion of political difficulties” and “circumventing political principles” are compromises and thus construct a system of decision-avoidance and end up with “suspension of difficult political decisions.” Behind this, we can see the “political purpose” of the “apolitical and ostensibly pure legal method” (Schmitt, Loughlin, and Foley Reference Schmitt, Loughlin and Foley2017, 351).

3.3. Theory of law versus Theory of politics: Zhang Junmai’s acceptance of Carl Schmitt’s article

By a close comparison between Schmitt’s original article “Hugo Preuss: His Concept of the State and His Position in German State Theory” and Zhang’s translation, I find a few points that deserve attention in Zhang Junmai’s acceptance of Carl Schmitt’s ideas addressed in this article.

First, Zhang’s commitment to the search for true politics made him readily accept Schmitt’s concept of the political while overlooking Schmitt’s distinction between enemy and friend.Footnote ⁷ We can see this point by comparing Schmitt’s original text and Zhang’s (Tables 2–4).

Table 2. Concept in concrete conflict

Table 3. Political concept as polemical concept

Table 4. Strategies of Party-Political practice

From the three tables, we see that Schmitt emphasises that all political concepts are not abstract concepts; they all come from concrete oppositions. Zhang Junmai’s translation of the German words Gegensatz, Gegensätzlichkeit, and Antithese as “duidai qingxing” (antithesis) captures the basic meaning of Schmitt’s original text. However, although Zhang’s translation retains Schmitt’s friend–enemy dichotomy, it does not draw full attention to it. Zhang’s own reflection on the truth of politics made him readily accept Schmitt’s concept of the political, although he focuses very little on Schmitt’s concept of the friend–enemy dichotomy.

Second, Zhang Junmai incorporates Schmitt’s criticism of pure jurisprudence into his elaboration on the theory of politics as opposed to the theory of law (falü lun 法律论). From Table 5, we see that in his translation, Zhang Junmai deletes the word “pure” before “jurisprudence” and translates “pure jurisprudence” as falü lun 法律论 (theory of law), which negates the specific connotation of the concept of “pure jurisprudence.” He also changes “politicising” into the “theory of politics.” Such changes do not violate the basic meanings of Schmitt’s words. Rather, through re-narrating Schmitt’s theory in his own language, Zhang Junmai provides his creative interpretation of Carl Schmitt’s emphasis on the political and turns it into his own distinction between the theory of politics and the theory of law.

Table 5. Theory of Politics vs. Theory of law

Table 6 provides a close comparison between Schmitt’s original text and Zhang Junmai’s translation:

Table 6. The So-called “Apolitical”

From Table 6, we see that Zhang’s translation captures the basic meaning of Schmitt’s argument and makes a clear differentiation between the theory of law and the theory of politics: the former claims to be pure “legal theory,” but cannot avoid being trapped in polities, while the latter embodies the following ideas: politics exist in concrete situations; politics penetrates all fields; true politics should be able to solve difficult political problems (Zhang Reference Zhang2006, 343).

Third, Zhang Junmai turned Carl Schmitt’s emphasis on decision-making against decision suspension into his own emphasis on the “solution of difficult political problems.” If we compare Carl Schmitt’s original text with Zhang Junmai’s translation, we find two differences (see Table 7):

Table 7. Decision-Avoidance

Zhang Junmai’s translation changes two sentences. First, Zhang translates “circumventing political principles” into “avoiding the method of political thought.” Second, while the original text describes Bismarck’s approach as “a system of circumventing decisions,” Zhang Junmai’s translation emphasises that “Bismarck’s purpose” is “only to avoid complete solutions.” In Carl Schmitt’s article “Hugo Preuss,” Schmitt calls attention to political situations; he emphasises that political principles are more fundamental than psychological approaches. Zhang Junmai’s translation keeps the basic meaning of Schmitt’s original text while presenting it in his own language. By changing “political principles” into “method of political thought,” Zhang Junmai emphasises a theory of politics at the level of methodology. By using “complete solutions” to interpret “decisions,” he omits Carl Schmitt’s notion of “political decision;” however, his interpretation as “complete solutions” still captures the inner spirit of Schmitt’s idea of making decisions in the face of political difficulties.

3.4. Translation and reinterpretations of notions

In the third paragraph of Carl Schmitt’s original text, Schmitt deepens his analysis on the suspension of difficult political decisions; Zhang Junmai’s translation captures the basic meaning of Carl Schmitt’s article “Hugo Preuss” despite some revisions at the level of expression (see Table 8):

Table 8. Suspension of difficult political decisions

From Table 9, we see that Zhang Junmai continues to translate “decisions” into “complete solutions.” In Schmitt’s text, he admits that it is difficult to completely avoid the suspension of difficult political decisions. However, in severe situations, if politicians cannot make decisions, then difficult problems cannot be completely solved and may end up in a standstill. Where there are opposing political sides, if their strengths are equal, the likely outcome is a stalemate between them. The Weimar Constitution was such a negotiation. Schmitt believes that this method of negotiating would turn difficult political problems into a deadlock, and so would not be useful, but harmful, to the future of the state. By defining this type of negotiation or compromise as a political application of the so-called “apolitical” and “purely legal methods,” Schmitt uncovers the political face of those scholars who claimed to be apolitical. If we compare Schmitt’s original sentence with Zhang Junmai’s translation, we see that Zhang leaves out Schmitt’s emphasis on the political face of the so-called apolitical method. Rather, Zhang interprets it as a position of those scholars who insisted on a theory of law to approach the issues of the state. While Schmitt highlights those legal scholars’ political strategy behind their apolitical gesture, Zhang Junmai emphasises the method of negotiation and the nature of the Weimar Constitution as a compromise (See Table 9):

Table 9. The unsolved constitutional question

From Table 9, we see that Zhang Junmai’s translation captures the main meaning of Schmitt’s sentence, though omitting one important point. In Schmitt’s text, “German constitutions of the nineteenth century allowed the real points of contention in domestic conflicts to remain unresolved;” “the real points of contention in domestic conflicts” are linked to “the fundamental constitutional question:” “that of who held constituent power.” Although the 2017 English translation translates “staatstheoretisch formuliert” as “from the perspective of constitutional theory,” it can also be translated as “in terms of state theory.” In fact, in the genealogy of German state theory or constitutional theory, a group of terms including Staatsrechtswissenschaft, Staatsrechtslehre, Staatsrecht, or those labelled as “staatstheoretisch” are often translated in the following ways: state theory, constitutional law, or public law. For example, the 2017 English translation translates “Staatsrechtler” as “public law professor.” From Schmitt’s text, we see the emphasis on “state theory” and the sovereignty of the state. For Schmitt, these are among the most fundamental issues of politics. Zhang Junmai’s translation does not reveal this point in Table 9, but Table 8 shows that he draws attention to “those scholars of state theory who belonged to the school of (pure) law.” Moreover, Zhang Junmai’s advocacy, in 1937, for the establishment of a Chinese state philosophy, still shows the influence of German state theory, from Hegel to Schmitt.

Why was the Weimar Constitution a compromise? Carl Schmitt argues that,

Table 10 provides a close comparison between Schmitt’s original text and Zhang’s translation.

Table 10. Decision postponed

From Table 10, we see again Zhang Junmai’s translation changes Schmitt’s notion of “decision-making” into a “complete solution of problems.” While Schmitt criticises the German Constitution as a particular kind of compromise, a decision-suspending, dilatory compromise between monarchy and democracy, Zhang Junmai translates “decision-suspending” as “delaying of the solving of” the problem of sovereignty. From this instance and similar examples above, we can conclude that Zhang Junmai understands Schmitt’s arguments on “decision,” “decision-making,” and “decision-suspending” in terms of solutions to difficult political problems.

After pointing out the historical reasons why the German Constitution was a compromise, Carl Schmitt criticises that the so-called purely legal approach is hollow:

Zhang Junmai’s translation of this sentence is as follows:

In Schmitt’s opinion, the evasion of making political decisions or avoidance of political difficulties would defeat all political attempts at harmonisation and reconciliation of conflicting political principles and would result in a failure to solve political problems. Zhang Junmai also correctly highlights Schmitt’s criticism of pure legal theory as lacking real content. In addition, while criticising the theory of law, Zhang recommends the theory of politics. In other words, by correctly introducing Schmitt’s main points in his article, Zhang’s translation also embodies a creative reinterpretation of Schmitt’s arguments and constitutes a dialogue with Schmitt’s original text.