The rational origins of modern constitutionalism: Russian and American constitutional traditions seen in the light of Hegel and Kant (Georg Wilhelm Friedrich Hegel, Immanuel Kant).

摘要

The contemporary constitutionalism is a product of the Enlightenment. Before the seventeenth-eighteenth century the “constitution” was understood either as a form of government or as a codification of laws. The content of the contemporary constitutionalism is quite different. Its core comprises the idea of the rule of law. Actually, its underlying intuition is that the essence of law (supposedly objective) is to be radically different from the essence of human beings (supposedly subjective). The substantial characteristic of the human beings is nothing else than reason. Accordingly, law to a certain extent can be understood as the other of reason.; At the same time, this other can neither articulate, nor reproduce itself. It is to be articulated and reproduced by reason. I think that we can describe this situation through the Kantian teaching on reason, which splits its activity and acts on behalf of the other (creation of [legal] concepts, i.e. of the letter of the law—lawgiving) and on its own behalf (thinking in concepts—interpretation and conceptualization of law).; Immanuel Kant is justly regarded as a paradigmatic philosopher of the Enlightenment. With his name the conceptual understanding of the Enlightenment begins. Another major figure, with whom this tradition ends, is Hegel. Hegel was very critical of Kant's interpretation of such crucial concepts as reason, nature and freedom. In this sense, Kant and Hegel could be considered as the two poles of the Enlightenment tradition.; The other two poles of the Enlightenment (though not in terms of reason, but in its projection onto the sphere of politics and law) are the American and Russian constitutional traditions. I think that Kant's ethics can be seen as paradigmatically underlying the American constitutional tradition, while Hegel's teaching on politics and law, the Russian constitutional development.; The American and Russian constitutional models differ dramatically. The most obvious distinction is that the former belongs to the common law tradition and the latter to the so-called tradition of “civil law.” Moreover, the U.S. constitution exists more than two hundred years. The accent of the American constitutional tradition fans on the current, along the time, interpretation of this document. This implies the central role of the U.S. Supreme Court in the constitutional scheme.; Russia knows six constitutions: four Soviet, one pre-Soviet and one post-Soviet, which is currently in force. In this tradition it happens that a new constitution is adopted not only with every change of the political regime, but also with every new phase of the same [Soviet] regime. The focus here is not on the procedure of adopting and interpreting the constitution, but rather on its substantial aspects, i.e. on declaring social achievements and setting up new goals. The power structure is designed accordingly, i.e. procedural questions are not prioritized. Thus, the American constitutional model is considered as procedural and implicitly based on the Kantian concept of reflective judgement. The Russian, on the other hand, is defined as substantive and related to the determinative judgement.