Constitutional Paideia: Remarks on
ABSTRACT: Constitutional paideia designates a form of constitutionalism that construes a nations constitution essentially in terms of ongoing processes of collective self-formation. This paper explores the notion of constitutional paideia as formulated by Hegel, who explicitly defines constitutionalism with categories of Bildung. The papers strategy is to present Hegel position in light of questions that can be raised about it. The paper advances three central theses: (1) in spite (and perhaps because) of his historico-culturist approach to law, Hegel is a theoretician of constitutional paideia; (2) despite construing constitutionalism in terms of ongoing processes of popular self-interpretation, Hegel does not vitiate the distinction between law and politics deemed so central to constitutional theory; and (3) despite construing constitutionalism in terms of self-formative processes of a particular culture, Hegel does not jettison the normativity and trans-contextualism long associated with modern constitutional theory. The paper concludes with some observations on the contemporary significance of Hegelian constitutionalism.
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 valuesthat "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 JŁrgen 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 negativapresenting 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.
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 itselfthat "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)
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 centera shift of attentionthan . . . 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)
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, andgiven his theory of corporate representationmechanisms 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 appropriationcriteria 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.
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 constitus!), 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)
(1) For a different approach, see Andrew Arato, "Constitutional Learning," manuscript of paper presented at the April 1997 Columbia University conference, "Democratization and Justice."
(2) Political Liberalism (New York: Columbia UniversityPress, 1996) [hereafter PL], p. 163.
(3) "Law's Republic," The Yale Law Journal 97/8 (July 1988): 1513.
(4) See On Revolution (New York: Viking Penguin, 1965).
(5) Faktizitt und Geltung: Beitrge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats (Frankfurt: Suhrkamp, 1992). A English translation has been published under the title Between Facts and Norms (Cambridge, MA: MIT Press, 1996), p. 320.
(6) Here we might also distinguish the idea of constitutional paideia from Ulrich Preuss' notion of constitutional progress, which sees constitututionalism more as the condition that the consequence of self-formative processes. See Constitutional Revolution. The Link Between Constitutionalism and Progress (New York: Humanities, 1995).
(7) Elements of the Philosophy of Right (Cambridge: CU Press, 1993) [hereafter PR], p. 273f.
(8) PR, 274.
(9) PR, 274R.
(10) Vorlesungen ber Naturrecht und Staatswissenschaft transcribed by P. Wannenmann, edited by Claudia Becker et al. (Hamburg: Meiner, 1983) [hereafter Wa], 134,161.
(11) To be sure, the type of comprehensive constitutionalism advocated by Hegel is not necessarily incompatible with contractarianism. For an effort to specify their relation, one which to be sure is more restrictively political than is Hegel's, see Samuel Freeman, "Original Meaning, Democratic Interpretation and the Constitution," Philosophy and Public Affairs 21/1 (Winter 92): 3-42.
(12) PR, 267.
(13) For an overview of different concepts of constitutionalism, see E.-W. B"ckenf"rde, "Geschichtliche Entwicklung und Bedeutungswandel der Verfassung," in Staat, Verfassung, Demokratie (Frankfurt: Suhrkamp, 1991), pp. 29-52. See also Dario Castiglione, "The Political Theory of the Constitution," Political Studies XLIV (1996): 419-437.
(14) Wa, 134. In arguing that a constitution can and must be renewed, Hegel is obviously ascribing to political action something he denies to philosophy, for which a shape of life that has grown old "cannot be rejuvenated but only known" (lŠt sich nicht verjngen, sondern nur erkennen) [22, translation amended].
(15) PR, 344.
(16) For an illuminating discussion of the general relationship between tradition and renewal in constitutional theory, one very similar to Hegel's, see Sheldon S. Wolin, "Contract and Birthright," in The Presence of the Past (Baltimore: Johns Hopkins, 1989), pp. 137-150.
(17) PR, 298.
(18) PR, 298R, amended.
(19) Encyclopaedia of the Philosophical Sciences III (Oxford: Clarendon, 1971), 514.
(20) PR, 187R, amended.
(21) Wa, 134.
(22) See Wa, 134. For some background, see Hans-Christian Lucas, "`Wer hat die Verfassung zu machen, das Volk oder wer anders?' Zu Hegels Verstndnis der konstitutionellen Monarchie zwischen Heidelberg und Berlin," in Lucas and Otto P"ggeler (eds.), Hegels Rechtsphilosophie im Zusammenhang der europischen Verfassungsgeschichte (Stuttgart-Bad Canstatt: Frommann-Holzboog, 1986), pp. 175-220. It should be noted that Hegel is mindful of the difference between individual and collective forms of self-formation. What characterizes collective formation is the ongoing process to establish and reestablish a balance or "equilibrium" of laws and culture, institutional structures and internal sentiment (PR, 271). Yet since, following Montesquieu, Hegel defines both the constitution and Volksgeist as this "cognitive unity" of law and sentiment, this characterization only accentuates the sense in which constitutionalism connotes processes of collective formation and self-formation.
(23) Hegel's Lectures on the History of Philosophy I, p. 4.
(24) Wa, 131, 146. See Rolf Grawert, "Verfassungsfrage und Gesetzgebung in PreuŠen. Ein Vergleich der vormrzlichen Staatspraxis mit Hegels rechtsphilosophichen Konzept," Hans-Christian Lucas and Otto P"ggeler, Hegels Rechtsphilosophie im Zusammenhang der europischen Verfassungsgeschichte, especially p. 294.
(25) PR, 273.
(26) A current version of this thesis has been formulated by Frank Michelman, "Can Constitutional Democrats be Legal Positivists? Or Why Constitutionalism?," Constellations 2/3 (January 1996), especially 298-303.
(27) Hegel would thus likely agree with Philip Selznick, who has characterized constitutionalism "as a style of decision. It is a way of upholding principles while recognizing the demands of a changing social reality. Constitutionalism provides a perspective of continuity and a resource for the future, but it also insists that each generation be its own master." See "The Ethos of American Law," in Irving Kristol and Paul Weaver (eds.), The Americans: 1976 (Lexington, MA: D.C. Heath, 1976), p. 222.
(28) PL, p. 233.
(29) Wa, 134.
(30) Wa, 134.
(31) PR, 298, translation amended.
(32) We The People 1: Foundations (Cambridge, MA: Harvard University Press, 1991).
(33) From a Hegelian perspective as well, political jurisgenesis is "a constant, not an episodic, activity." See "Law's Republic," 1523, 1525.
(34) For a contemporary notion of parliamentary constitutionalism within a context of legal continuity, see Stephen Holmes and Cass Sunstein, "The Politics of Constitutional Revision," in Sanford Levinson (ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton, NJ: Princeton U Press, 1995), 275-306.
(35) Vorlesungen ber Rechtsphilosophie 1818-1831 ed. Karl-Heinz Ilting (Stuttgart-Bad Canstatt: Friedrich Frommann, 1973) IV, p. 722ff.
(36) Jenaer Systementwrfe III: Naturphilosophie und Philosophie des Geistes ed. Rolf-Peter Horstmann (Hamburg: Meiner, 1987), p. 240.
(37) PR, 316.
(38) Wa, 127.
(39) PR, 187R.
(40) For a related discussion of Hegel's application of a logic of equivalence and self-equivalence to his social theory, see Andrew Buchwalter, "Hegel, Marx, and the Concept of Immanent Critique," Journal of the History of Philosophy, XXIX/2 (April 1991), especially 260-264.
(41) PR, 331R, amended.
(42) In this way Hegel anticipates a development in political philosophy noted by Alessandro Ferrara writes: "What we observe, in fact, is a shift from an understanding of this superordinate framework as consisting of a set of general and context independent principles to an understanding of it as being linked with judgment concerning the congruity of a constitution with the political identity of the people whose political life it should regulate." See "The Changing Paradigm of Justice: Reflections of Justice and Judgment," manuscript of presentation to Conference "Democratization and Justice," Columbia University, April 1997.