|公 法 评 论||惟愿公平如大水滚滚，使公义如江河滔滔
et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis
Philosophy of Law
Hegel and the Russian Constitutional Tradition
Alexander S. Fesenko
ABSTRACT: This paper advances the idea that Russian constitutionalism developed through a reinterpretation of Russian history in terms of Hegel's concept of the World Spirit. Russians implicitly viewed their nation as the embodiment of Hegel's World Spirit, which would have a unique messianic mission for humanity. However, the specifics of Russia's historical development diverged from Hegel's critical stage of ethical development, in which individuals would be mutually recognized as free beings. For this reason, the rights of the individual in Russia were seen until recently as originating exclusively in the state and valid only insofar as a given individual constituted an organic part of the whole or collective. I give examples from all six Russian and Soviet constitutions. I also demonstrate how the 1993 post-Soviet constitution represents a major breakthrough in the advancement of individual rights in Russia.
Hegel is the philosopher whose teachings on history, politics and law set the stage for the genesis and evolution of the Russian constitutional tradition. Although Hegel made only a brief mention of Russian history in his own writing, (1) his theories have played a major role throughout the development of Russian constitutionalism.
In my presentation I would like to raise and develop, as time allows, the following five theses:
1) The mature Russian political and legal tradition emerged in the middle of the 19th century through reinterpretation of previous Russian national development in terms of Hegel's understanding of history as a process of the self-development of the World Spirit as the Absolute.
2) The embodiment of the World Spirit was interpreted as the Russian and later the Soviet state. Accordingly, the Russian/Soviet state was apotheosized in terms of its unique nature and Messianic mission.
3) The Hegelian concept of state is based on the mutual recognition of individuals as being substantially free. This crucial point of Hegel's philosophy was missing in Russia, where the concept of "individual personhood" (Pers?nlichkeit) never became a part of the Russian political and legal doctrines. As a result, individual rights were interpreted as having their origin exclusively in the state as a whole, and were considered to be valid only insofar as a given individual constituted an organic part of the totality.
4) According to the Hegelian teaching, Spirit (and the World Spirit in particular) develops from the state of its mere potentiality to its actuality. In other words, Spirit develops from its being in another (nature, which is not yet Spirit) to its being in itself and for itself (knowing itself as the only and whole actuality). Accordingly, Spirit. s development toward its completeness turns out to be Spirit. s liberation from the other. In the case of the Russian and especially the Soviet political and legal system, this would mean that any individual who tries to claim his or her independent position in respect to the whole, is to be regarded as an other, who is therefore to be disposed of.
5) The post-Soviet Constitution of 1993 is a clear change from the tradition of viewing the whole or the collective as the only source of all rights and freedoms. The core of this post-Soviet constitution is human individual rights, which are laid down as self-subsistent and fundamentally irreducible to any totality or "higher cause."
Before I begin with the first thesis, I would like to make some general comments on Russian legal and cultural traditions. In Russia the legal tradition is regarded as an organic part of the broader intellectual tradition. In this respect, Hegel's understanding of the "science" of law as pertaining to the general system of "scientific knowledge" (2) fits the Russian common understanding of law. For this reason, the problem of constitutional development in Russia cannot be thoroughly analyzed by studying only the texts of the Russian constitutions.
The first Russian Constitution was adopted in 1906. Except for the period of the four Dumas (parliaments) from 1906 to 1917 and the post-Soviet period after 1991, the parliamentary tradition is absent in Russia. Based on this fact, it may seem that such constitutional problems as democratic systems of government, civil rights, liberties and justice appeared for the Russians only in the 20th century. Nevertheless, these and other constitutional issues were factors in Russian society already in the 18th century, and by the middle of the 19th century they were at the very center of political and legal debates there.
1) Now let me start with the first thesis: namely, that the Russian political and legal tradition from the middle of the 19th century on is based on Hegel's understanding of history as a process of the self-development of the World Spirit as the Absolute.
Russian national consciousness arose in the second half of the 15th century as a result of the fall of the Byzantine Empire. After the Moslem Turks seized Constantinople, the "second Rome," in 1453, Russians began to view themselves as the only power to represent the true faith of the world. Thus, the messianic idea of the Muscovite kingdom as the "third Rome" appeared in Russia during the reign of the czar Ivan III.
Ivan III was a remarkable figure in Russian history. He managed to liberate Russia from the Tartar-Mongols in 1480 and to establish the centralized Russian state with its capital in Moscow. In 1472 he married Sophia (Zoe) Paleologue, the niece of the last Byzantine emperor, Constantine XI. Through this marriage, Ivan III inherited the imperial rights to Byzantium.
The idea of the Muscovite state as the "third Rome" became very popular among all strata of Russian society. The "holiness" of the Russian land became the Russian national feeling, which was destroyed neither by the great split (raskol) of the Russian Orthodox church in the middle of the 17th century, nor later by Peter the Great's "Westernization" of Russia.
Russia's national tradition of philosophical thought emerged rather late, in the middle of the 19th century. This tradition had the issue of Russia's messianic destiny at its very heart. It arose in a dispute between the Slavophiles and the Westernizers: while the former were for the "unique" Russian way of national development, the latter favored Western ways. Nevertheless, for both sides the major concern was the "future of Russia" in terms of its "supreme historical mission."
Since the 1820's, Russian thought was under the predominant influence of the teachings of Schelling and Hegel. (3) Schelling's romantic mysticism was felt mostly in aesthetics. Hegel, on the contrary, was more influential in such rational spheres as politics and law.
Both the Slavophiles and the Westernizers were fascinated with Hegel. s philosophy of history. They assimilated and reinterpreted his teaching in their own respective styles on the basis of Russian national traditions. They based their philosophy on a presupposition that the World Spirit was nothing else but the Russian Orthodox Spirit, which became the only Absolute for them. Russian history was reinterpreted according to this perspective with all its ideological implications. From that time to the beginning of the 1990's the concept of the "objective" development of world history and the Russian Messianic role as its core was never questioned within the Russian political and legal doctrines, but rather reformulated and assimilated into the Marxist ideology after the Bolshevik revolution of 1917.
2) The embodiment of the World Spirit was considered to be the Russian and later the Soviet state. Nevertheless, the state power and its "sacred" origin were interpreted differently before and after the Bolshevik revolution. The first Russian Constitution of 1906 leaves virtually unrestricted "Supreme Autocratic Power" to the emperor, whose personal status was declared to be "sacred and inviolable" (Art. 5). This document does not even have the word "constitution" in its title, but is called the "Code of Fundamental State Laws." For the last Russian emperor Nicholas II the very word "constitution" sounded like a blasphemy and an assault on the "sacred" origin of the "Russian absolute monarchic rule." Interestingly, the words "Fundamental Laws" were kept along with the word "constitution" in the title of all four Soviet constitutions, namely of 1918, 1924, 1936 and 1977.
After the Bolshevik revolution of 1917, a more comprehensive absolutization of state power took place under the Marxian slogan for the "cause of the world proletariat." In the Marxian teaching the concept of the "world proletariat" corresponds to the Hegelian concept of "World Spirit" in terms of its absolute supremacy in relation to anything else along the development of world history. The Messianic role of Russian Communists is explicitly stated in Art. 3 of the Constitution of 1918, in which, besides "the establishment of a Socialist society" in Russia, they proclaimed as their goal "the victory of socialism in all countries" (emphasis added). In Art. 4 they express their "fixed resolve to liberate mankind from the grip of capital and imperialism . . ." (emphasis added). This ideology was used to apotheosize the Soviet state machinery, which began its unprecedented militarization in order to realize its "historic mission" in every way.
3) The Hegelian teaching on the state is based on a mutual recognition of individuals as substantially free. According to Hegel, every human being in his or her inner core is free. In order to become free in a temporally and spatially delimited existence, where the inwardly free individuals deal with each other, all the individuals must recognize themselves as equal by their very substance, which is freedom. Only on the basis of such a recognition can a free unity arise, or as Hegel puts it, the inner spirit as substance takes on an outer existence and as a result the "realm of ethical life" reveals itself. (4)
In other words, an ethical form of communal life, according to Hegel, is a conscious process of the self-realization of the individual. s freedom first in his or her personality, then in family, society, and the state. These larger groupings of individuals are understood as "objective" phases of the self-development of the "subjective," i.e. individual freedom. That is why Hegel says that the "individual as such has an infinite value." (5)
At least until the early 1990's, this crucial point of Hegel. s philosophy was missing in Russia, where the concept of "individual personhood" (Pers?nlichkeit) never became a part of Russian political and legal traditions. Until the 20th century Russian peasants used to view their landlord and any other leader as the "Father" and themselves as his "children." In the countryside, younger people called the older people "uncles," and "aunts." People of the same age addressed each other as "brother" and "sister." (6)
Not only peasants, but also representatives of all strata of the Russian society used to speak of the Russian emperor as the "father" and of the empress as the "mother." This "family," or more accurately "genus" mentality as projected on the state is very characteristic for Russia. Personal rights and freedoms were never an issue there. Only the interests of "fatherland" prevailed. Even the most liberal Russian thinkers were rarely aware that human rights and freedoms could be realized only through the constitutional procedures of checks and balances. Thus, in the Russian constitutional tradition, the Hegelian absolutization of state as the ethical whole turned out to be an absolutization of the Russian archaic whole, which did not know any individual rights, but only its own "sacred" mission.
This situation started to change formally after the Constitution of 1906 was adopted. In its Chapter 8, with certain restrictions, there are such essential human rights as inviolability of domicile and property, freedom of speech, freedom to form societies, freedom of religion (Art. 72-82). This document, however, says nothing of the origin of these rights and freedoms. So in short, although the Russians made use of the Western tradition of constitutions, they did not make fully explicit the concept of natural human rights.
The 1906 Constitution treats the emperor differently from other citizens. The major part of the first division of the Constitution, namely six of eleven chapters, is dedicated to the place and role of the emperor and his family. The first chapter, for example, is titled "On the Nature of the Supreme Autocratic Power" and speaks of the emperor's person as "sacred and inviolable" and of the duty to obey his power as "commanded by God Himself." The second and last division of the Constitution is nothing else but an incorporation of the Organic Law of the Imperial Family, which can be amended and supplemented "only by . . . the Emperor personally . . ." (Art. 125).
The first Soviet Constitution of 1918 establishes a dictatorship of the proletariat (Art. 9), i.e. of the whole, which is explicitly antagonistic toward anything foreign to it, i.e. any other. The totality is now personified not by the emperor, but by the Soviet authority. This situation formally changed in 1977, when in the preamble of the last Soviet Constitution the dictatorship of the proletariat was stated to "have fulfilled its tasks." The Soviet State was proclaimed an "all-people. s state." However, the first real changes in this direction became visible only after Gorbachev came to power in 1985.
Individual rights in all the Russian Constitutions, except that of 1993, are described as having their origin exclusively in the whole, i.e. the state, which unity is personified either by the emperor or by the Soviet authority. Those rights are presumed to be valid insofar as individuals constitute an organic part of this whole, i.e. either of the Russian monarchy or the Soviet state of "working people."
4) In the Hegelian system, the Spirit's self-development starts from a point where the Spirit is not in its proper shape, but merely in a "natural" one, in nature, which is the other. Here the Spirit does not know itself as Spirit, but is rather in a state of slumber. Throughout its self-development, the Spirit finds out that "nature," i.e. the other, is nothing else but Spirit that does not know yet itself as Spirit. Thus, the Spirit comes to know itself as the only actuality and disposes of anything other than itself. In this manner the Spirit reaches its completeness and becomes the whole actual reality, or the Absolute. Thus, this process of Spirit's self-development turns out to be a process of Spirit's liberation from the other.
So it follows that in the context of the Russian and especially the Soviet political and legal traditions, any individual who tries to claim his or her own independent position in respect to the whole is to be regarded as the other, which must be disposed of. In case of the Constitution of 1906, the whole is represented by the monarchic rule. In the Soviet era, the idea of the whole is embodied in the "dictatorship of the proletariat," which claimed to express the interests of all people.
In Art. 18 of the Constitution of 1918 there is a famous Soviet motto: "he shall not eat who does not work." The criterion of who works and who doesn't lies along the lines of social strata. Those who belonged to the proletariat and the poorest peasantry were viewed as working people; others were not. There was, however, an exception to the rule: the army, police, party and state bureaucrats, who called themselves "servants of the people."
Other people were even formally deprived of their right to vote. Art. 65 gives a long list of those who can neither elect, nor be elected, namely: persons who employ hired labor, who have an income as an interest from capital, private merchants and brokers, monks and clergy of all denominations, and so on. However, the legal status of the proletariat and the poorest peasantry was not much more secure. Art. 23 says, that in the name of the "interests of the working class as a whole" the Soviet state "deprives all individuals and groups of rights which could be utilized by them to the detriment of the Socialist Revolution" (emphases added).
The Stalin-era Constitution of 1936 does not have special articles concerning those who do not work because they were already so to speak "eradicated." This is the Constitution of the "victory of the dictatorship of the proletariat" (Art. 1). The dictatorship, however, is not abolished yet, for it has to deal with those who still serve as an "obstacle" on the way to achieve a monolithic unity of the party and the people. Ominous threats to those who refuse to become the one with the party are clearly read in Art. 131, which states, that persons "making attacks" upon socialist property, "shall be regarded as enemies of the people." Art. 132 stipulates that "treason to the motherland," which is a rather vague category, "shall be punished with the full severity of the law as the gravest crime."
The last Soviet Constitution of 1977 in its preamble states that it preserves the "continuity of the ideas and principles" of all three previous Soviet Constitutions. In Art. 6 the role of the Communist party is defined as "the leading and guiding force of Soviet society and the nucleus of its political system and of state and social organizations." The Chapter on civil rights in this Constitution begins with a statement that in exercising their rights and freedoms, citizens "may not injure the interests of society and the state . . ." (Art. 39).
5) The post-Soviet Constitution of 1993 marks a visible change in this tradition of viewing the totality as the only source of all constitutional rights and freedoms. In Art. 2 of this Constitution, human rights and freedoms are declared to be of the "highest value." Art. 13 recognizes "ideological pluralism" and "political diversity," and prohibits the establishment of a state ideology. Chapter 2 is completely dedicated to human rights and freedoms, which are declared to be "inalienable" and to belong to "each person from birth" (Art. 17). And what is even more important, Chapter 9, on "Constitutional Amendments and Revision of the Constitution" says that no provision contained in Chapter 1, "The Principles of the Constitutional System," Chapter 2 on human rights, and Chapter 9 itself can be revised by the Russian parliament.
So, besides the chapters on general questions (1) and on procedural questions (9), the only chapter that cannot be revised is that on human rights. This actually means that human rights from this time on are to be regarded, at least formally, as the foundation of the Russian Constitution. There is no doubt that these rights are civil individual rights that are formulated as self-subsistent and fundamentally irreducible either to any totality or a "higher cause." As Hegel wrote in his Lectures on the History of Philosophy:
Every nation in course of time makes such alterations in its existing constitution as will bring it nearer to the true constitution. The nation's Spirit itself shakes off its marionette strings, and the constitution expresses the consciousness of what the nation. s Spirit is in itself, — the form of truth, of self-knowledge. (7)
(1) Hegel's letter to von Uexküll of November 28, 1821 (Berlin). See Hegel, Briefe von und an Hegel, Band 2, ed. Johannes Hoffmeister, S?mtliche Werke, XXVII-XXX (Hamburg: Felix Meiner, 1953) 298.
(2) Hegel's Philosophy of Right, trans. T. M. Knox (London: Oxford University Press, 1967) 14.
(3) D. I. Chizhevskii, Gegel. v Rossii [Hegel in Russia] (Paris: Dom knigi, 1939) 32-35, 50, 222, 246-258.
(4) Hegel, Phenomenology of Spirit, trans. A. V. Miller (Oxford: Oxford University Press, 1977) 212.
(5) Hegel's Philosophy of Mind, Being Part Three of the Encyclopaedia of the Philosophical Sciences (1830), trans. William Wallace (Oxford: Clarendon, 1971) 240.
(6) K. D. Kavelin, "Vzgliad na iuridichevkii byt drevnei Rossii," in Nash umstvennyi stroi: stat. i po filosofii russkoi istorii i kul. tury ["A View of the Legal Life of Old Russia," in Our State of Mind. Articles on the Philosophy of Russian History and Culture] (Moscow: Pravda, 1989) 15.
(7) Hegel, Lectures on the History of Philosophy in three volumes, vol. 2 (Lincoln and London: University of Nebraska Press, 1995) 97. I made some corrections in the translation of this piece from Hegel.
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