Towards a Critical Theory of Constitutional Law: Hegel's Contribution

Abstract

In this article we will present an account of Hegel's critical theory of citizenship within the modem state. This account constitutes a potential resource for those who seek to engage in a critical analysis of the foundation, legitimacy, and manner of application of some key doctrines and assumptions of orthodox constitutional law. A Hegelian approach is shown to provide a distinctive, and arguably superior, conception of the nature of constitutional rights and freedoms: one which provides us with an alternative to the one-sidedness of both negative liberal rights and those positive entitlements which are parts of the ideology of state socialism. With particular reference to its implications for existing Western-liberal institutions and conceptions of citizenship, the first section sets out the nature of a Hegelian conception of 'immanent critique'. The second section presents a Hegelian conception of participatory citizenship; whilst the final section discusses Hegel's self-consciously historical approach to both the ideals and potential of a rational constitutional state. The overall argument is that an adequate theory of constitutional law must combine into a coherent totality the concreteness of both historical and critical elements, with the intellectual rigour of conceptual analysis and theoretical justification. Hegel's account of constitutional law is relevant since it offers us a rare example of such a combination.