Part 25

§ 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 as revenge—into _punishment_ (§ 500).

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 development—constitutional (inner-state) law: (β) a particular individual, 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.

α. Constitutional Law(167).

§ 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.