论《大清国籍条例》的制定及其法律意义

“国籍”是伴随着西方近代民族国家所形成的世界体系的建立而出现的，是基于国家主权、主权平等原则的基础之上，用于区分不同国民或者公民的一种法律概念。历史上促使我国第一部国籍法——《大清国籍条例》订立的直接因素，源于清政府希望为海外华侨提供延伸保护，这一历史背景，致使法学界对它的研究大多从侨务政策的单一角度出发，围绕着国籍法与华人之间的关系展开。然而，从法制史的历史视角看，第一部国籍法的制定标志着大清国从传统王朝国家向现代民族国家转型的开端，应具有更为深远的法制意义。若从国家建构的角度讲，国民身份建构又是现代国家建构的重要一环。现代国家与古典国家的重大不同之处在于，现代国家有统一的中央政府，确定的国家领土范围以及清晰的国民身份。在传统中国的认知之中，对外只知“天下”而未知有“国家”,对内自称为“子民”而不知为“国民”。国籍立法关涉现代国民身份之法律资格，从这种意义上讲，《大清国籍条例》的制定可以说是近现代中国国家建构的一次标志性事件。新政改革后期，出于被动适应现代国家政治运作逻辑和主动解决统治危机之需，晚清政府在内外交困之中进行国民身份立法的尝试。然而，现代国家建构的首要任务应是构建稳定的国...

On the enactment and legal significance ofQing Nationality Ordinance

Nationality emerged with the establishment of the world system formed by western modern nation-state. It is a legal concept based on the principle of national sovereignty and sovereign equality, which is used to distinguish different nationals or citizens. In modern China, historically, the first nationality law, which was named as Nationality Ordinance, was enacted by the Qing government. The direct incentive to draw up Nationality Ordinance was the desire of the Qing government to provide extended protection for overseas Chinese. This historical background determined that the majority of the academic researches in legal circle about it focused on the relationship between nationality law and Chinese from a single perspective of overseas Chinese affairs policy. However, from the historical perspective of legal history, the enactment of the first nationality law marked the beginning of the transformation of Qing Dynasty from a traditional dynastic state to a modern nation-state, which might have a more profound significance. From the perspective of state construction, the construction of national identity is a crucial part of modern state construction. The significant difference between the modern states and the ancient states is that the modern states have a unified central government, defined national territory and a legible national identity. In traditional Chinese cognition, people only know Tianxia, but do not understand the meaning of state; internally, they claim themselves to be subjects rather than citizens. Nationality legislation is concerned with the legal qualification of modern national identity. In this sense, the enactment of Qing Nationality Ordinance could be regarded as a landmark event of the national construction in modern China. At that time, out of passively adapting to the political operation logic of modern state and considering to actively solve the ruling crisis, the late Qing government tried to legislate national identity in the trouble of internal and foreign affairs. However, without construction of a necessary national stability, this legislative attempt was doomed to fail under the background of unresolved existential crisis. The substance of this ordinance was still far from the mature nationality law of modern countries as well. Although the legislative attempt of Qing Nationality Ordinance was not successful, it objectively promoted the germination of modern national identity consciousness. In China, the household registration system is always be used in field of population management and people only have the identity under a household identity rather than having the identity as an individual. The nationality law would provide authority and legitimacy to individual identity. From household registration to nationality, from subject to citizen, the traditional Confucian ethical order was replaced by the modern legal logic of rights and obligations. Qing Nationality Ordinance was not only concerned with the establishment of the legal identity of the Chinese, but also carried a foreshadowing of the rise of the modern Chinese state.