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July 1, 2005
Hegel holds that a constitution expresses the broader values, practices, and traditions of the culture of the nation-state. I'm working off this article by Andrew Buchwalter entitled 'Constitutional Paideia: Remarks on Hegel's Philosophy of Law'
This expression is not just 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 assumptions 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."
We rarely hear this view expressed in Australia, where the constitution is seen as a stand alone legal document.
Hegel's thesis is that what he calls the "political constitution" cannot be identified with the legal constitution as such (Verfassung). The former 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.
However, Hegel does more than embed a legal constitution within the culture and ethical life of a people living within a nation-state. For a constitution to express the culture of a people, it must also accommodate processes through which a culture routinely refashions inherited traditions so as to ensure their applicability to changing social circumstances. So a constitution can be understood as a transmitted legacy whose vitality requires renewal through a community of interpreters who reappropriate and clarify legal-political traditions, principles, institutions in light of present realities.
Thus in paragraph 344 of the Philosophy of Right he says:
In the course of this work of the world spirit, states, nations, and individuals arise animated by their particular determinate principle which has its interpretation and actuality in their constitutions and in the whole range of their life and condition. While their consciousness is limited to these and they are absorbed in their mundane interests, they are all the time the unconscious tools and organs of the world spirit at work within them. The shapes which they take pass away, while the absolute spirit prepares and works out its transition to its next higher stage."
Hegel recognizes the political reality that a people is already constituted. As they were in Australia before the constituional referendums in the 1890s.
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Gary
'Hegel needs to work in the software industry. That will kick all the "social cohesion" crap out of him and force the constitution to become an explicit requirements document.'