Constitutional paideia is a term I shall use to designate a form of constitutionalism
that construes a nation's constitution essentially in terms of ongoing processes of
collective self-formation.(1) As such, it is markedly
distinct from competing models. It is distinct from liberal models, notably represented
today by John Rawls, for whom a constitution must "guarantee certain basic political
rights and liberties and establish democratic procedures for moderating the political
rivalry, and for determining issues of social policy."(2)
While constitutional paideia is not chary of liberal concern for legal and moral
constraints, it rejects the latter's commitment to entrenched rights and a fixed sense of
a nation's legal-political identity. It is likewise distinct from communitarian models,
represented however ambiguously by Frank Michelman. While sharing with such models a focus
on communal identity, its commitment to processes of self-formation renders constitutional
inhospitable to a theory keyed to a set of preexisting cultural values—that
"more encompassing common life, bearing the imprint of a common past."(3)
Constitutional paideia is distinct further from republican models, represented equally
ambiguously by Hannah Arendt. Although it shares with republicanism the notion that
constitutionalism must be sensitive to principles of public virtue, collective power, and
civic commitment to a shared enterprise, it places special emphasis on the conditions for
constituting collective identity and nationhood itself.(4)
Constitutional paideia is also distinct from deliberative models, represented notably by
Jürgen Habermas, for whom "the constitution establishes political procedures
according to which citizens, in the exercise of their right to self-determination,
successfully pursue the cooperative project of establishing just (or more just) conditions
of life."(5) While constitutional paideia is committed
to the proposition that a constitution facilitates public reflection on ends of communal
life, it claims additionally that collective deliberation denotes a process whereby a
people itself is constituted and reconstituted.(6)
In the following I explore the notion of constitutional paideia as formulated by Hegel,
who explicitly defines constitutionalism with categories of Bildung. I do so largely via
negativa—presenting Hegel's position in light of questions that might be raised about
it. I argue first that, apparent evidence to the contrary notwithstanding, Hegel is a
theoretician of constitutional paideia; here I explore the meaning of Hegel's
historico-culturist approach to law. Second, I address the charge that, by construing
constitutionalism in terms of ongoing processes of popular self-interpretation, Hegel may
vitiate the distinction between law and politics deemed so central to constitutional
theory. Third, I address the charge that, by construing constitutionalism in terms of
self-formative processes of a particular culture, Hegel may jettison the normativity and
trans-contextualism long associated with modern constitutional theory. Finally, I hazard
some observations on the contemporary significance of Hegelian constitutionalism.
I.
The proposition that Hegel fashions a notion of constitutional paideia may seem prima
facie implausible. Here I refer, however, not to the monarchical component of Hegelian
constitutionalism, a component whose significance is regularly exaggerated. A more serious
objection to the notion that Hegelian constitutionalism denotes processes of
self-formation derives from Hegel's rejection of the Enlightenment view that a
constitution can be a formal-legislative enactment, a construction (ein Gemachtes). He
rejects this view because it fails to acknowledge the degree to which a people is always
already constituted. The notion that a constitution could be an explicit act of creation
is proper to the liberal conviction that, outside formal institutions, individuals are
isolated atoms who are related to one another in the formless "shape" of an
aggregate. Yet this view, aside from the injustice it may do to a concept of human nature,
misconstrues political action (constitution-making included), which is unintelligible
unless individuals are already related to one another in some constituted manner.(7)
But the Enlightenment view is, for Hegel, also ruled out simply because a constitution
must always express the broader values, practices, and traditions of a culture. This is so
not only in the Burkean sense that a constitution is inextirpably shaped by a culture's
received traditions and practices, but also in Montesquieu's sense that a constitution has
force only inasmuch as it articulates the values and assumption that account for social
cohesion. A constitution can have binding value for a people only to the extent that it
expresses "the customs and consciousness of the individuals who belong to it."(8)
Without this specific reference to sentiment, the constitution remains an abstraction
(Gedankending), and so "will have no meaning or value, even if it is present in an
external sense."(9) In this sense, it is unsurprising
that Hegel identifies the constitution with the Volksgeist. Not only does he thereby
affirm his thesis regarding the cultural embeddedness of a constitution; he claims as well
that a constitution subsists only as that "internal life of a people" that
defines the notion of Volksgeist.(10) A constitution is not
a formal contract but the principle of social cohesion that embodies the broader cultural
identity or "spirit" of a nation.(11) Hegel's
point is not to deny place in political life to a more formal notion of the constitution,
one based on publicly recognized procedures guaranteeing individual liberties. A
theoretician of the modern constitutional state, he, too, specifies the framework for a
constitution faithful to the liberal principle of the rule of law. His thesis is only that
what he calls the "political constitution"(12)
(Konstitution) cannot be identified with the constitution as such (Verfassung). The latter
denotes that broader assemblage of norms, institutions, and customs that defines a nation
and gives meaning and validity to particular institutions, formal agreements and
procedures included.(13)
From this, however, it cannot be concluded that Hegel's is, after all, a communitarian
approach to constitutionalism. What is unique in his effort to embed a constitution within
the culture a people is precisely the degree to which this itself mandates processes of
constitutional learning. Precisely because a constitution does express the living
"spirit" of a people, it must accommodate processes through which a culture
routinely refashions inherited traditions so as to ensure their applicability to changing
social circumstances. If a constitution cannot be made, it can and must be renewed
(verjngert)(14) if it is to retain vitality. Indeed,
far from employing the language of construction, Hegel explicitly adopts that of
"interpretation" (Auslegung).(15) Understood as a
transmitted legacy whose vitality requires renewal, a constitution depends on a community
of interpreters who reappropriate and clarify legal-political traditions, principles,
institutions in light of present realities.(16)
Little wonder then that Hegel assigns constitutional pride of place to the legislature,
which he asserts is a "part" of the constitution and not just, as with the
executive and the crown, a branch of government subject to it. By so identifying
constitutionalism with parliamentarianism and, particularly, parliamentary debate, Hegel
accommodates the "new and further determination" that a constitution requires
for its continued legitimacy.(17) By identifying the
constitution primarily with processes of collective deliberation, he reaffirms the thesis
that a constitution "essentially . . . becomes, i.e., it advances via learning
(Bildung)."(18)
Hegel's point is not simply that constitutionalism depends on processes of collective
self-formation but that it itself is that process. This follows from his identification of
a constitution with the Volksgeist. For Hegel, the legitimacy of a particular Volksgeist
is measured on the standard of achieved and achieving processes of self-formation: the
genuine spirit of a people is reflected in its ability cognitively to identify with the
traditions shaping it. The Volksgeist is the "free substance which knows
itself."(19) Yet this self-knowing process defines the
Bildungprozess itself—that "transition from an ethical substantiality which is
immediate and natural to one which is infinitely subjective, at once reflexive and raised
to shape of universality."(20) Thus in equating the
constitution with Volksgeist, Hegel likewise equates a constitution with popular processes
of self- cultivation. All constitutions are "internal developments of the Volksgeist;
each expresses "a Volksgeist as it develops itself in history."(21)
Hegel may claim that no one formally makes a constitution, but this is only because
constitutionalism itself connotes the organic process through which an entire culture
shapes, constitutes, and indeed "makes itself."(22)
Thus while Hegel accentuates the cultural situatedness of a constitution, he is not
thereby barred from prioritizing processes of historical learning and collective
self-cultivation. Instead, structures of historical embeddedness and progressive paideia
are, for Hegel, two sides of a common coin. One does justice to the historicity of a
constitution by relating it to the "lived" culture that gives its authority
legitimacy, and yet this vitality can be assured only through learning processes,
including above all processes of collective self-interpretation. For Hegel, constitutional
history, like history generally, records not "the becoming of things foreign to us,
but the becoming of ourselves and our own self-knowledge."(23)
II.
Once connected to processes of collective self-interpretation, Hegelian
constitutionalism might still seem vulnerable to other criticisms. It might be said, for
instance, that Hegel now reduces constitutionalism to politics and so jettisons those
juridical constraints constitutions commonly design to protect public life from the
vagaries of direct popular involvement. Yet such interpretation misrepresents his
position. While assigning central place to legislative will, he does not abandon the
safeguards essential to liberal constitutionalism. This is ruled out first by the nature
of constitutional change itself. Precisely because change occurs "through the
operations of legislature," it is always governed by the procedures and
"constitutional laws" that govern all legislative activity.(24)
In addition, because a people is always already constituted, any constitutional change
itself presupposes the constitution and thus can occur "only in a constitutional
manner."(25) Furthermore, commitment to
"entrenched" constraints flows from the identification of the constitution with
the Volksgeist.(26) Constitutional change, for Hegel, is
also change in the identity of a people, yet because the object of change is
simultaneously the source of the change, any transformation is likewise affirmation of
principles of constitutional continuity. In each case, constitutional change, though
comprehensive, is governed by constraints that preclude subsuming a constitution to forces
of arbitrary political will.
Hegel would likely sympathize with Thomas Jefferson's concerns about the dangers to
civic life posed by adherence to constitutional structures that no longer express the
concerns of the "living." But his own notion of constitutional change is
governed by cross-generational constraints whose elimination is neither possible nor
desirable.(27) Where Hegel differs from rights
foundationalists is not in denying "entrenched" principles, but in the
conviction that what John Rawls terms "constitutional essentials" are not
"fixed once and for all."(28) If essential
constitutional change cannot occur "at one stroke,"(29)
political action can effectuate a gradual alteration in basic constitutional structures
and principles. "Individual components can be changed," while "the whole .
. . shapes itself gradually."(30) Indeed, the same
considerations which constrain legislative action also accommodate the process by which a
constitution becomes "entirely different than what it was before."(31)
The fact that a people is always constituted, that a constitution expresses the totality
of social life, that it is "the foundation ... of which everything that occurs,"
dictates that change resulting from ordinary legislation likewise contributes to the
general constitution and reconstitution of society.
In this respect Hegel's theory can be instructively compared to that of Bruce Ackerman.(32)
Like Ackerman, Hegel advances an emphatic notion of constitutional politics, one
accounting for systematic alteration of constitutional principles via ongoing processes of
popular self-constitution. With Ackerman, Hegel also recognizes that an account of
constitutional change must accommodate larger cultural forces and cannot be restricted to
any formal amendment process. On the other hand, Hegel would reject Ackerman's
contraposition of constitutional to ordinary or everyday politics. He would, in
particular, reject Ackerman's Kuhnian-inspired view that change occurs through radical,
episodic shifts operating outside ordinary political and legislative life. Claiming
instead that constitutional change transpires through gradual transformations in a
culture's self-understanding, Hegel would argue that everyday politics also thematizes
constitutional issues, and any difference between the two is more of degree than kind.
Hegel thus anticipates Michelman, who construes constitutional change "more like a
movement from margin to center—a shift of attention—than . . . the total
replacement of one `world' by another."(33) Conversely,
Hegel would insists that even constitutional politics must be subject to the legal
constraints that govern ordinary legislation and administration. While constitutionalism
cannot be defined in terms of rights foundationalism, it also cannot be abandoned to the
whims of subinstitutional populism. In a philosophy of law understood at once as
Naturrecht und Staatswissenschaft, a political culture is sustainable only if ordinary
legislation is capable of broaching constitutional questions and constitutional politics
is not exempt from the formal constraints regulating ordinary parliamentary activity.(34)
III.
It may be argued that, while Hegel's notion of constitutional theory may be governed by
mechanisms that preclude constitutional populism, it is still be bound to the context of a
particular legal community and thus incapable of thematizing those "higher"
norms and principles whose accommodation is the task of any legitimate modern
constitution. Yet this, too, would misrepresent Hegel's position. Here I leave aside
broader questions of Hegel's account of natural law and its relation to a theory of
positive law. I note only that Hegel's account of the process of constitutional learning
is itself governed and indeed propelled by context-transcending mechanisms that militate
against any apotheosis of preexisting values. This follows from his equation of popular
spirit with the deliberative public sphere, defined as the means "by which people
establishes its identity."(35) By conjoining Volksgeist
and (tm)ffentlichkeit, also termed both "the true legislative corp" and the
"spiritual bond" of society,(36) Hegel not only
accentuates the extent to which judgments regarding constitutional matters are to be
rendered not "through habit and custom, but mainly through insight and reasoned
argument."(37) He also acknowledges the
indispensability of those structures presupposed by a functioning public sphere, including
subjective liberty, freedom of speech and conscience, equal treatment, the rule of law,
fora for public communication, and—given his theory of corporate
representation—mechanisms assuring a plurality of views and interests. Hegel's appeal
to the concept of Volksgeist, far from binding law to the existing values of a particular
community, is meant to accommodate normative structures able to differentiate between
genuine and spurious expressions of constitutional life. It demonstrates how a
constitution conceived culturally can likewise be construed as "the organization of
freedom, the rationality of a people."(38)
A similar point can be made by noting the sense in which constitutional learning, for
Hegel, is a process of collective self-education. Here two matters are of import. The
first involves the relation of metaphysics and politics, always accentuated by Hegel. As
noted, Hegel claims that constitutional paideia, like Bildung generally, is regulated by
the logic of self-knowing subjectivity that defines his metaphysics. This is to say,
however, that the process of Bildung is itself governed by certain general norms. To be
successful, this process must meet general criteria of subjectivity, selfhood,
correspondence, self-agreement, reflective appropriation—criteria permitting
differentiation between genuine and spurious forms of self-cultivation. What precisely
these standards are and how they are to be determined is, naturally, a difficult matter.
Clear, though, is that in asserting that the Bildungsprozess must express the "shape
of universality,"(39) Hegel proffers a notion of
constitutional paideia able to challenge the self-understanding of a particular legal
community.(40) Second, in line with his social theory, Hegel
maintains that the identity of a culture presupposes an openness to other cultures,
including a limine other interpretations of its own culture. He makes the point when
arguing that, as regards the nation-state, constitutional law (das innere Staatsrecht),
presupposes international law (das „ussere Staatsrecht). "Without relations with
other states, the state can no more be an actual individual [Individuum] than an
individual [der Einzelne] can be an actual person with relationship with other persons. .
. . The legitimacy of a state . . . is essentially to be completed through the recognition
of other states."(41) While Hegel does define a
constitution in terms of communal self-interpretation, his account of the logic of such
interpretation incorporates a pluralist sensitivity that challenges rather than reinforces
a given cultural context.
IV.
Appreciation of Hegel's concept of constitutional paideia is important as it
contributes to current debates in constitutional theory itself, triggered anew by recent
developments in Eastern Europe. Hegel's theory demonstrates, for instance, how, pace
Ackerman, constitutional and ordinary politics can be conjoined without vitiating their
important differences; how processes of constitutional revision can, pace Rawls, thematize
"constitutional essentials" rather than just their application; how, pace
Habermas, constitutional patriotism can have a truly constitution- constitutive, or
jurisgenerative, function; how, pace Dworkin, constitutional hermeneutics can assume the
form of community-wide rather than just judicial interpretation; how, pace Michelman,
constitutional culturism can be understood as much through reference to a future as to a
past or present identity.
Similarly, appreciation of Hegel's position demonstrates that constitutionalism need
not be distinct from popular sovereignty and that liberal commitment to the rule of law is
not antithetical to conditions for collective identity and mutual trust. Or again, Hegel's
theory of constitutional paidiea demonstrates why constitution-founding is always a matter
of reconstitution, how a constituted people can also claim constitutive power (un pouvoir
constituant constitu‚s!), and how by fashioning constitutional politics as a legally
governed parliamentary process, Hegel provides a method for navigating a course between
rights foundationalism and legal populism.
Hegel's notion of constitutional paideia is also significant for more generally
philosophical reasons. In particular, it can serve as a model for a normative theory at
once nonfoundational and immune to charges of contextualism. Indeed, by deriving
normativity from the conditions for historical embeddedness itself, Hegel advances a
critique of contextualism arguably more consequential than a version that simply
contraposes norms to history and tradition. At the very least, the principle of
self-congruence governing his account of collective self-formation demonstrates how
constitutional theory can attend to the exigencies of a particular culture and still
champion an emphatic account of normativity without mandating recourse to a general theory
of language, rationality, or autonomy.(42)
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