the first a certain subsistence, certain however because guaranteed through the whole society.
b. Administration of Justice(164).
§ 529. When matured through the operation of natural need and free option into a system of universal relationships and a regular course of external necessity, the principle of casual particularity gets that stable articulation which liberty requires in the shape of _formal right_. (1) The actualisation which right gets in this sphere of mere practical intelligence is that it be brought to consciousness as the stable universal, that it be known and stated in its specificality with the voice The _positive_ element in laws concerns only their form of _publicity_ and _authority_—which makes it possible for them to be known by all in a customary and external way. Their content _per se_ may be reasonable—or it may be unreasonable and so wrong. But when right, in the course of definite manifestation, is developed in detail, and its content analyses itself to gain definiteness, this analysis, because of the finitude of its materials, falls into the falsely infinite progress: the _final_ definiteness, which is absolutely essential and causes a break in this progress of unreality, can in this sphere of finitude be attained only in a way that savours of contingency and arbitrariness. Thus whether three years, ten thalers, or only 2-1/2, 2-3/4, 2-4/5 years, and so on _ad infinitum_, be the right and just thing, can by no means be decided on intelligible principles,—and yet it should be decided. Hence, though of course only at the final points of deciding, on the side of external existence, the “positive” principle naturally enters law as contingency and arbitrariness. This happens and has from of old happened in all legislations: the only thing wanted is clearly to be aware of it, and not be misled by the talk and the pretence as if the ideal of law were, or could be, to be, at _every_ point, determined through reason or legal intelligence, on purely reasonable and intelligent grounds. It is a futile perfectionism to have such expectations and to make such requirements in the sphere of the finite.
There are some who look upon laws as an evil and a profanity, and who regard governing and being governed from natural love, hereditary, divinity or nobility, by faith and trust, as the genuine order of life, while the reign of law is held an order of corruption and injustice. These people forget that the stars—and the cattle too—are governed and well governed too by laws;—laws however which are only internally in these objects, not _for them_, not as laws _set to_ them:—whereas it is man’s privilege to _know_ his law. They forget therefore that he can truly obey only such known law,—even as his law can only be a just law, as it is a _known_ law;—though in other respects it must be in its essential content contingency and caprice, or at least be mixed and polluted with such elements.
The same empty requirement of perfection is employed for an opposite thesis—viz. to support the opinion that a code is impossible or impracticable. In this case there comes in the additional absurdity of putting essential and universal provisions in one class with the particular detail. The finite material is definable on and on to the false infinite: but this advance is not, as in the mental images of space, a generation of new spatial characteristics of the same quality as those preceding them, but an advance into greater and ever greater speciality by the acumen of the analytic intellect, which discovers new distinctions, which again make new decisions necessary. To provisions of this sort one may give the name of _new_ decisions or _new_ laws; but in proportion to the gradual advance in specialisation the interest and value of these provisions declines. They fall within the already subsisting “substantial,” general laws, like improvements on a floor or a door, within the house—which though something _new_, are not a new _house_. But there is a contrary case. If the legislation of a rude age began with single provisos, which go on by their very nature always increasing their number, there arises, with the advance in multitude, the need of a simpler code,—the need i.e. of embracing that lot of singulars in their general features. To find and be able to express these principles well beseems an intelligent and civilised nation. Such a gathering up of single rules into general forms, first really deserving the name of laws, has lately been begun in some directions by the English Minister Peel, who has by so doing gained the gratitude, even the admiration, of his countrymen.
§ 530. (2) The positive form of Laws—to be _promulgated and made known_ as laws—is a condition of the _external obligation_ to obey them; inasmuch as, being laws of strict right, they touch only the abstract will,—itself at bottom external—not the moral or ethical will. The subjectivity to which the will has in this direction a right is here only publicity. This subjective existence is as existence of the essential and developed truth in this sphere of Right at the same time an externally objective existence, as universal authority and necessity.
The legality of property and of private transactions concerned therewith—in consideration of the principle that all law must be promulgated, recognised, and thus become authoritative—gets its universal guarantee through _formalities_.
§ 531. (3) Legal forms get the necessity, to which objective existence determines itself, in the _judicial __ system_. Abstract right has to exhibit itself to the _court_—to the individualised right—as _proven_:—a process in which there may be a difference between what is abstractly right and what is provably right. The court takes cognisance and action in the interest of right as such, deprives the existence of right of its contingency, and in particular transforms this existence,—as this exists The comparison of the two species, or rather two elements in the judicial conviction, bearing on the actual state of the case in relation to the accused,—(1) according as that conviction is based on mere circumstances and other people’s witness alone,—or (2) in addition requires the confession of the accused, constitutes the main point in the question of the so-called jury-courts. It is an essential point that the two ingredients of a judicial cognisance, the judgment as to the state of the fact, and the judgment as application of the law to it, should, as at bottom different sides, be exercised as _different functions_. By the said institution they are allotted even to bodies differently qualified,—from the one of which individuals belonging to the official judiciary are expressly excluded. To carry this separation of functions up to this separation in the courts rests rather on extra-essential considerations: the main point remains only the separate performance of these essentially different functions.—It is a more important point whether the confession of the accused is or is not to be made a condition of penal judgment. The institution of the jury-court loses sight of this condition. The point is that on this ground certainty is completely inseparable from truth: but the confession is to be regarded as the very acmé of certainty-giving which in its nature is subjective. The final decision therefore lies with the confession. To this therefore the accused has an absolute right, if the proof is to be made final and the judges to be convinced. No doubt this factor is incomplete, because it is only one factor; but still more incomplete is the other when no less abstractly taken,—viz. mere circumstantial evidence. The jurors are essentially judges and pronounce a judgment. In so far, then, as all they have to go on are such objective proofs, whilst at the same time their defect of certainty (incomplete in so far as it is only _in them_) is admitted, the jury-court shows traces of its barbaric origin in a confusion and admixture between objective proofs and subjective or so-called “moral” conviction.—It is easy to call _extraordinary_ punishments an absurdity; but the fault lies rather with the shallowness which takes offence at a mere name. Materially the principle involves the difference of objective probation according as it goes with or without the factor of absolute certification which lies in confession.
§ 532. The function of judicial administration is only to actualise to necessity the abstract side of personal liberty in civil society. But this actualisation rests at first on the particular subjectivity of the judge, since here as yet there is not found the necessary unity of it with right in the abstract. Conversely, the blind necessity of the system of wants is not lifted up into the consciousness of the universal, and worked from that period of view.
c. Police and Corporation(166).
§ 533. Judicial administration naturally has no concern with such part of actions and interests as belongs only to particularity, and leaves to chance not only the occurrence of crimes but also the care for public weal. In civil society the sole end is to satisfy want—and that, because it is man’s want, in a uniform general way, so as to _secure_ this satisfaction. But the machinery of social necessity leaves in many ways a casualness about this satisfaction. This is due to the variability of the wants themselves, in which opinion and subjective good-pleasure play a great part. It results also from circumstances of locality, from the connexions between nation and nation, from errors and deceptions which can be foisted upon single members of the social circulation and are capable of creating disorder in it,—as also and especially from the unequal capacity of individuals to take advantage of that general stock. The onward march of this necessity also sacrifices the very particularities by which it is brought about, and does not itself contain the affirmative aim of securing the satisfaction of individuals. So far as concerns them, it _may_ be far from beneficial: yet here the individuals are the morally-justifiable end.
§ 534. To keep in view this general end, to ascertain the way in which the powers composing that social necessity act, and their variable ingredients, and to maintain that end in them and against them, is the work of an institution which assumes on _one_ hand, to the concrete of civil society, the position of an external universality. Such an order acts with the power of an external state, which, in so far as it is rooted in the higher or substantial state, appears as state “police.” On the _other_ hand, in this sphere of particularity the only recognition of the aim of substantial universality and the only carrying of it out is restricted to the business of particular branches and interests. Thus we have the _corporation_, in which the particular citizen in his private capacity finds the securing of his stock, whilst at the same time he in it emerges from his single private interest, and has a conscious activity for a comparatively universal end, just as in his legal and professional duties he has his social morality.
CC. The State.
§ 535. The State is the _self-conscious_ ethical substance, the unification of the family principle with that of civil society. The same unity, which is in the family as a feeling of love, is its essence, receiving however at the same time through the second principle of conscious and spontaneously active volition the _form_ of conscious universality. This universal principle, with all its evolution in detail, is the absolute aim and content of the knowing subject, which thus identifies itself in its volition with the system of reasonableness.
§ 536. The state is (α) its inward structure as a self-relating and therefore in connexion with other particular individuals,—international (outer-state) law; (γ) but these particular minds are only stages in the general development of mind in its actuality: universal history.
§ 537. The essence of the state is the universal, self-originated and self-developed,—the reasonable spirit of will; but, as self-knowing and self-actualising, sheer subjectivity, and—as an actuality—one individual.
Its _work_ generally—in relation to the extreme of individuality as the multitude of individuals—consists in a double function. First it maintains them as persons, thus making right a necessary actuality, then it promotes their welfare, which each originally takes care of for himself, but which has a thoroughly general side; it protects the family and guides civil society. Secondly, it carries back both, and the whole disposition and action of the individual—whose tendency is to become a centre of his own—into the life of the universal substance; and, in this direction, as a free power it interferes with those subordinate spheres and retains them in substantial immanence.
§ 538. The laws express the special provisions for objective freedom.
First, to the immediate agent, his independent self-will and particular interest, they are restrictions. But, secondly, they are an absolute final end and the universal work: hence they are a product of the “functions” of the various orders which parcel themselves more and more out of the general particularising, and are a fruit of all the acts and private concerns of individuals. Thirdly, they are the substance of the volition of individuals—which volition is thereby free—and of their disposition: being as such exhibited as current usage.
§ 539. As a living mind, the state only is as an organised whole, differentiated into particular agencies, which, proceeding from the one notion (though not known as notion) of the reasonable will, continually produce it as their result. The _constitution_ is this articulation or organisation of state-power. It provides for the reasonable will,—in so far as it is in the individuals only _implicitly_ the universal will,—coming to a consciousness and an understanding of itself and being _found_; also for that will being put in actuality, through the action of the government and its several branches, and not left to perish, but protected both against _their_ casual subjectivity and against that of the individuals. The constitution is existent _justice_,—the actuality of liberty in the development all its reasonable provisions.
Liberty and Equality are the simple rubrics into which is frequently concentrated what should form the fundamental principle, the final aim and result of the constitution. However true this is, the defect of these terms is their utter abstractness: if stuck to in this abstract form, they are principles which either prevent the rise of the concreteness of the state, i.e. its articulation into a constitution and a government in general, or destroy them. With the state there arises inequality, the difference of governing powers and of governed, magistracies, authorities, directories, &c. The principle of equality, logically carried out, rejects all differences, and thus allows no sort of political condition to exist.
Liberty and equality are indeed the foundation of the state, but as the most abstract also the most superficial, and for that very reason naturally the most familiar. It is important therefore to study them closer.
As regards, first, Equality, the familiar proposition, All men are by nature equal, blunders by confusing the “natural” with the “notion.” It ought rather to read: _By nature_ men are only unequal. But the notion of liberty, as it exists as such, without further specification and development, is abstract subjectivity, as a person capable of property (§ 488). This single abstract feature of personality constitutes the actual _equality_ of human beings. But that this freedom should exist, that it should be _man_ (and not as in Greece, Rome, &c. _some_ men) that is recognised and legally regarded as a person, is so little _by nature_, that it is rather only a result and product of the consciousness of the deepest principle of mind, and of the universality and expansion of this consciousness. That the citizens are equal before the law contains a great truth, but which so expressed is a tautology: it only states that the legal status in general exists, that the laws rule. But, as regards the concrete, the citizens—besides their personality—are equal before the law only in these points when they are otherwise equal _outside the law_. Only that equality which (in whatever way it be) they, as it happens, otherwise have in property, age, physical strength, talent, skill, &c.—or even in crime, can and ought to make them deserve equal treatment before the law:—only it can make them—as regards taxation, military service, eligibility to office, &c.—punishment, &c.—equal in the concrete. The laws themselves, except in so far as they concern that narrow circle of personality, presuppose unequal conditions, and provide for the unequal legal duties and appurtenances resulting therefrom.
As regards Liberty, it is originally taken partly in a negative sense against arbitrary intolerance and lawless treatment, partly in the affirmative sense of subjective freedom; but this freedom is allowed great latitude both as regards the agent’s self-will and action for his particular ends, and as regards his claim to have a personal intelligence and a personal share in general affairs. Formerly the legally defined rights, private as well as public rights of a nation, town, &c. were called its “liberties.” Really, every genuine law is a liberty: it contains a reasonable principle of objective mind; in other words, it embodies a liberty. Nothing has become, on the contrary, more familiar than the idea that each must _restrict_ his liberty in relation to the liberty of others: that the state is a condition of such reciprocal restriction, and that the laws are restrictions. To such habits of mind liberty is viewed as only casual good-pleasure and self-will. Hence it has also been said that “modern” nations are only susceptible of equality, or of equality more than liberty: and that for no other reason than that, with an assumed definition of liberty (chiefly the participation of all in political affairs and actions), it was impossible to make ends meet in actuality—which is at once more reasonable and more powerful than abstract presuppositions. On the contrary, it should be said that it is just the great development and maturity of form in modern states which produces the supreme concrete inequality of individuals in actuality: while, through the deeper reasonableness of laws and the greater stability of the legal state, it gives rise to greater and more stable liberty, which it can without incompatibility allow. Even the superficial distinction of the words liberty and equality points to the fact that the former tends to inequality: whereas, on the contrary, the current notions of liberty only carry us back to equality. But the more we fortify liberty,—as security of property, as possibility for each to develop and make the best of his talents and good qualities, the more it gets taken for granted: and then the sense and appreciation of liberty especially turns in a _subjective_ direction. By this is meant the liberty to attempt action on every side, and to throw oneself at pleasure in action for particular and for general intellectual interests, the removal of all checks on the individual particularity, as well as the inward liberty in which the subject has principles, has an insight and conviction of his own, and thus gains moral independence. But this liberty itself on one hand implies that supreme differentiation in which men are unequal and make themselves more unequal by education; and on another it only grows up under conditions of that objective liberty, and is and could grow to such height only in modern states. If, with this development of particularity, there be simultaneous and endless increase of the number of wants, and of the difficulty of satisfying them, of the lust of argument and the fancy of detecting faults, with its insatiate vanity, it is all but part of that indiscriminating relaxation of individuality in this sphere which generates all possible complications, and must deal with them as it can.
Such a sphere is of course also the field of restrictions, because liberty is there under the taint of natural self-will and self-pleasing, and has therefore to restrict itself: and that, not merely with regard to the naturalness, self-will and self-conceit, of others, but especially and essentially with regard to reasonable liberty.
The term political liberty, however, is often used to mean formal participation in the public affairs of state by the will and action even of those individuals who otherwise find their chief function in the particular aims and business of civil society. And it has in part become usual to give the title constitution only to the side of the state which concerns such participation of these individuals in general affairs, and to regard a state, in which this is not formally done, as a state without a constitution. On this use of the term, the only thing to remark is that by constitution must be understood the determination of rights, i.e. of liberties in general, and the organisation of the actualisation of them; and that political freedom in the above sense can in any case only constitute a part of it. Of it the following paragraphs will speak.
§ 540. The guarantee of a constitution (i.e. the necessity that the laws be reasonable, and their actualisation secured) lies in the collective spirit of the nation,—especially in the specific way in which it is itself conscious of its reason. (Religion is that consciousness in its absolute substantiality.) But the guarantee lies also at the same time in the actual organisation or development of that principle in suitable institutions. The constitution presupposes that consciousness of the collective spirit, and conversely that spirit presupposes the constitution: for the actual spirit only has a definite consciousness of its principles, in so far as it has them actually existent before it.
The question—To whom (to what authority and how organised) belongs the power to make a constitution? is the same as the question, Who has to make the spirit of a nation? Separate our idea of a constitution from that of the collective spirit, as if the latter exists or has existed without a constitution, and your fancy only proves how superficially you have apprehended the nexus between the spirit in its self-consciousness and in its actuality. What is thus called “making” a “constitution,” is—just because of this inseparability—a thing that has never happened in history, just as little as the making of a code of laws. A constitution only develops from the national spirit identically with that spirit’s own development, and runs through at the same time with it the grades of formation and the alterations required by its concept. It is the indwelling spirit and the history of the nation (and, be it added, the history is only that spirit’s history) by which constitutions have been and are made.
§ 541. The really living totality,—that which preserves, in other words continually produces the state in general and its constitution, is the _government_. The organisation which natural necessity gives is seen in the rise of the family and of the ’estates’ of civil society. The government is the _universal_ part of the constitution, i.e. the part which intentionally aims at preserving those parts, but at the same time gets hold of and carries out those general aims of the whole which rise above the function of the family and of civil society. The organisation of the government is likewise its differentiation into powers, as their peculiarities have a basis in principle; yet without that difference losing touch with the _actual unity_ they have in the notion’s subjectivity.
As the most obvious categories of the notion are those of _universality_ and _individuality_ and their relationship that of _subsumption_ of individual under universal, it has come about that in the state the legislative and executive power have been so distinguished as to make the former exist apart as the absolute superior, and to subdivide the latter again into administrative (government) power and judicial power, according as the laws are applied to public or private affairs. The _division_ of these powers has been treated as _the_ condition of political equilibrium, meaning by division their _independence_ one of another in existence,—subject always however to the above-mentioned subsumption of the powers of the individual under the power of the general. The theory of such “division” unmistakably implies the elements of the notion, but so combined by “understanding” as to result in an absurd collocation, instead of the self-redintegration of the living spirit. The one essential canon to make liberty deep and real is to give every business belonging to the general interests of the state a separate organisation wherever they are essentially distinct. Such real division must be: for liberty is only deep when it is differentiated in all its fullness and these differences manifested in existence. But to make the business of legislation an independent power—to make it the first power, with the further proviso that all citizens shall have part therein, and the government be merely executive and dependent, presupposes ignorance that the true idea, and therefore the living and spiritual actuality, is the self-redintegrating notion, in other words, the subjectivity which contains in it universality as only one of its moments. (A mistake still greater, if it goes with the fancy that the constitution and the fundamental laws were still one day to make,—in a state of society, which includes an already existing development of differences.) Individuality is the first and supreme principle _which_ makes itself fall through the state’s organisation. Only through the government, and by its embracing in itself the particular businesses (including the abstract legislative business, which taken apart is also particular), is the state _one_. These, as always, are the terms on which the different elements essentially and alone truly stand towards each other in the logic of “reason,” as opposed to the external footing they stand on in ’understanding,’ which never gets beyond subsuming the individual and particular under the universal. What disorganises the unity of logical reason, equally disorganises actuality.
§ 542. In the government—regarded as organic totality—the sovereign power (principate) is (_a_) _subjectivity_ as the _infinite_ self-unity of the notion in its development;—the all-sustaining, all-decreeing will of the state, its highest peak and all-pervasive unity. In the perfect form of the state, in which each and every element of the notion has reached free existence, this subjectivity is not a so-called “moral person,” or a decree issuing from a majority (forms in which the unity of the decreeing will has not an _actual_ existence), but an actual individual,—the will of a decreeing individual,—_monarchy_. The monarchical constitution is therefore the constitution of developed reason: all other constitutions belong to lower grades of the development and realisation of reason.
The unification of all concrete state-powers into one existence, as in the patriarchal society,—or, as in a democratic constitution, the participation of all in all affairs—impugns the principle of the division of powers, i.e. the developed liberty of the constituent factors of the Idea. But no whit less must the division (the working out of these factors each to a free totality) be reduced to “ideal” unity, i.e. to _subjectivity_. The mature differentiation or realisation of the Idea means, essentially, that this subjectivity should grow to be a _real_ “moment,” an _actual_ existence; and this actuality is not otherwise than as the individuality of the monarch—the subjectivity of abstract and final decision existent in _one_ person. All those forms of collective decreeing and willing,—a common will which shall be the sum and the resultant (on aristocratical or democratical principles) of the atomistic of single wills, have on them the mark of the unreality of an abstraction. Two points only are all-important, first to see the necessity of each of the notional factors, and secondly the form in which it is actualised. It is only the nature of the speculative notion which can really give light on the matter. That subjectivity—being the “moment” which emphasises the need of abstract deciding in general—partly leads on to the proviso that the name of the monarch appear as the bond and sanction under which everything is done in the government;—partly, being simple self-relation, has attached to it the characteristic of _immediacy_, and then of _nature_—whereby the destination of individuals for the dignity of the princely power is fixed by inheritance.
§ 543. (_b_) In the _particular_ government-power there emerges, first, the division of state-business into its branches (otherwise defined), legislative power, administration of justice or judicial power, administration and police, and its consequent distribution between particular boards or offices, which having their business appointed by law, to that end and for that reason, possess independence of action, without at the same time ceasing to stand under higher supervision.
Secondly, too, there arises the participation of _several_ in state-business, who together constitute the “general order” (§ 528) in so far as they take on themselves the charge of universal ends as the essential function of their particular life;—the further condition for being able to take individually part in this business being a certain training, aptitude, and skill for such ends.
§ 544. The estates-collegium or provincial council is an institution by which all such as belong to civil society in general, and are to that degree private persons, participate in the governmental power, especially in legislation—viz. such legislation as concerns the universal scope of those interests which do not, like peace and war, involve the, as it were, personal interference and action of the State as one man, and therefore do not belong specially to the province of the sovereign power. By virtue of this participation subjective liberty and conceit, with their general opinion, can show themselves palpably efficacious and enjoy the satisfaction of feeling themselves to count for something.
The division of constitutions into democracy, aristocracy and monarchy, is still the most definite statement of their difference in relation to sovereignty. They must at the same time be regarded as necessary structures in the path of development,—in short, in the history of the State. Hence it is superficial and absurd to represent them as an object of _choice_. The pure forms—necessary to the process of evolution—are, in so far as they are finite and in course of change, conjoined both with forms of their degeneration,—such as ochlocracy, &c., and with earlier transition-forms. These two forms are not to be confused with those legitimate structures. Thus, it may be—if we look only to the fact that the will of one individual stands at the head of the state—oriental despotism is included under the vague name monarchy,—as also feudal monarchy, to which indeed even the favourite name of “constitutional monarchy” cannot be refused. The true difference of these forms from genuine monarchy depends on the true value of those principles of right which are in vogue and have their actuality and guarantee in the state-power. These principles are those expounded earlier, liberty of property, and above all personal liberty, civil society, with its industry and its communities, and the regulated efficiency of the particular bureaux in subordination to the laws.
The question which is most discussed is in what sense we are to understand the participation of private persons in state affairs. For it is as private persons that the members of bodies of estates are primarily to be taken, be they treated as mere individuals, or as representatives of a number of people or of the nation. The aggregate of private persons is often spoken of as the _nation_: but as such an aggregate it is _vulgus_, not _populus_: and in this direction, it is the one sole aim of the state that a nation should _not_ come to existence, to power and action, _as such an aggregate_. Such a condition of a nation is a condition of lawlessness, demoralisation, brutishness: in it the nation would only be a shapeless, wild, blind force, like that of the stormy, elemental sea, which however is not self-destructive, as the nation—a spiritual element—would be. Yet such a condition may be often heard described as that of true freedom. If there is to be any sense in embarking upon the question of the participation of private persons in public affairs, it is not a brutish mass, but an already organised nation—one in which a governmental power exists—which should be presupposed. The desirability of such participation however is not to be put in the superiority of particular intelligence, which private persons are supposed to have over state officials—the contrary may be the case—nor in the superiority of their good will for the general best. The members of civil society as such are rather people who find their nearest duty in their private interest and (as especially in the feudal society) in the interest of their privileged corporation. Take the case of _England_ which, because private persons have a predominant share in public affairs, has been regarded as having the freest of all constitutions. Experience shows that that country—as compared with the other civilised states of Europe—is the most backward in civil and criminal legislation, in the law and liberty of property, in arrangements for art and science, and that objective freedom or rational right is rather _sacrificed_ to formal right and particular private interest; and that this happens even in the institutions and possessions supposed to be dedicated to religion. The desirability of private persons taking part in public affairs is partly to be put in their concrete, and therefore more urgent, sense of general wants. But the true motive is the right of the collective spirit to appear as an _externally universal_ will, acting with orderly and express efficacy for the public concerns. By this satisfaction of this right it gets its own life quickened, and at the same time breathes fresh life in the administrative