272. The constitution is rational in so far as the active working divisions of the state are in accord with the nature of the conception. This occurs when every one of its functions is in itself the totality, in the sense that it effectually contains the other elements. These elements, too, though expressing the distinctions of the conception, remain strictly within its ideality, and constitute one individual whole.
Note.— Concerning the constitution, as concerning reason itself, there has in modern times been an endless babble, which has in Germany been more insipid than anywhere else. With us there are those who have persuaded themselves that it is best even at the very threshold of government to understand before all other things what a constitution is. And they think that they have furnished invincible proof that religion and piety should be the basis of all their shallowness. It is small wonder if this prating has made for reasonable mortals the words reason, illumination, right, constitution, liberty, mere empty sounds, and men should have become ashamed to talk about a political constitution. At least as one effect of this superfluity, we may hope to see the conviction becoming general, that a philosophic acquaintance with such topics cannot proceed from mere reasonings, ends, grounds, and utilities, much less from feeling, love, and inspiration, but only out of the conception. It will be a fortunate thing, too, if those who maintain the divine to be inconceivable and an acquaintance with the truth to be wasted effort, were henceforth to refrain from breaking in upon the argument. What of undigested rhetoric and edification they manufacture out of these feelings can at least lay no claim to philosophic notice.
Amongst current ideas must be mentioned, in connection with §269, that regarding the necessary division of the functions of the state. This is a most important feature, which, when taken in its true sense, is rightly regarded as the guarantee of public freedom. But of this those, who think to speak out of inspiration and love, neither know nor will know anything, for in it lies the element of determination through the way of reason. The principle of the separation of functions contains the essential element of difference, that is to say, of real rationality. But as apprehended by the abstract understanding it is false when it leads to the view that these several functions are absolutely independent, and it is onesided when it considers the relation of these functions to one another as negative and mutually limiting. In such a view each function in hostility to or fear of the others acts towards them as towards an evil. Each resolves to oppose the others, effecting by this opposition of forces a general balance, it may be, but not a living unity. But the internal selfdirection of the conception, and not any other purpose or utility, contains the absolute source of the different functions. On their account alone the political organization exists as intrinsically rational and as the image of eternal reason.
From logic, though indeed not of the accepted kind, we know how the conception, and in a concrete way the idea, determine themselves of themselves, and thereby abstractly set up their phases of universality, particularity, and individuality. To take the negative as the point of departure, and set up as primary the willing of evil and consequent mistrust, and then on this supposition cunningly to devise breakwaters, which in turn require other breakwaters to check their activity, any such contrivance is the mark of a thought, which is at the level of the negative understanding, and of a feeling, which is characteristic of the rabble (§244).—The functions of the state, the executive and the legislative, as they are called, may be made independent of each other. The state is, then, forthwith overthrown, an occurrence which we have witnessed on a vast scale. Or, in so far as the state is essentially self-contained, the struggle of one function to bring the other into subjection effects somehow or other a closer unity, and thus preserves only what is in the state essential and fundamental.
Addition.— In the state we must have nothing which is not an expression of rationality. The state is the world, which the spirit has made for itself. Hence it has a definite self-begun and selfrelated course. Often we speak of the wisdom of God in nature, but we must not therefore believe that the physical world of nature is higher than the world of spirit. Just so high as the spirit stands above nature, the state stands above the physical life. We must hence honour the state as the divine on earth, and learn that if it is difficult to conceive of nature, it is infinitely harder to apprehend the state. That we in modern times have attained definite views concerning the state in general, and are perpetually engaged in speaking about and manufacturing constitutions, is a fact of much importance. But that does not settle the whole matter. It is necessary further that we approach a reasonable question in the mind of rational beings, that we know what is essential, and distinguish it from what is merely striking. Thus, the functions of the state must indeed be distinguished; and yet each must of itself form a whole, and also contain the other elements. When we speak of the distinctive activity of any function, we must not fall into the egregious error of supposing that it should exist in abstract independence, since it should rather be distinguished merely as an element of the conception. If the distinctions were to subsist in abstract independence, it is as clear as light that two independent things are not able to constitute a unity, but must rather introduce strife. As a result, either the whole world would be cast into disorder, or the unity would be restored by force. Thus, in the French Revolution at one time the legislative function had swallowed up the executive, at another time the executive had usurped the legislative function. It would be stupid in such a case to present the moral claim of harmony, If we cast the responsibility of the matter upon feeling, we have indeed got rid of the whole trouble. But, necessary as ethical feeling is; it cannot evolve from itself the functions of state. Whence it comes to pass that since the definite functions are the whole implicitly, they comprise in their actual existence the total conception. We usually speak of the three functions of state, the legislative, executive, and judicial. The legislative corresponds to universality, and the executive to particularity; but the judicial is not the third element of the conception. The individuality uniting the other two lies beyond these spheres.
273. The political state is divided into three substantive branches:
(a) The power to fix and establish the universal. This is legislation.
(b) The power, which brings particular spheres and individual cases under the universal. This is the function of government.
(c) The function of the prince, as the subjectivity with which rests the final decision. In this function the other two are brought into an individual unity. It is at once the culmination and beginning of the whole. This is constitutional monarchy.
Note.— The perfecting of the state into a constitutional monarchy is the work of the modern world, in which the substantive idea has attained the infinite form. This is the descent of the spirit of the world into itself, the free perfection by virtue of which the idea sets loose from itself its own elements, and nothing but its own elements, and makes them totalities; at the same time it holds them within the unity of the conception, in which is found their real rationality. The story of this true erection of the ethical life is the subject matter of universal world-history.
The old classification of constitutions into monarchy, aristocracy, and democracy is based upon the substantive unity which has not yet been divided. This unity has no internal distinctions, is not an intrinsically developed organization, and has not attained depth and concrete rationality. From the standpoint of the ancient world the classification is correct, because the unity of the ancient state was a substantive whole, not as yet fully mature and unfolded. The distinctions predicated of it must hence be external, and refer merely to the number of persons in whom this substantive unity should find an abode. But these various forms of the state, which belong in this way to different wholes, are in constitutional monarchy lowered to their proper place as elements. In monarchy we have a single person, in its executive several, in legislation the multitude. But, as we have said, such merely quantitative distinctions are superficial, and do not account for the conception. Similarly, it is not to the point to speak so much as we do of the democratic or aristocratic element in the monarchy for the phases, described by these terms, just in so far as they occur in a monarchy, are no longer democratic and aristocratic.
It is thought by some that the state is a mere abstraction which orders and commands, and that it may be left undecided, or be regarded as a trifle, whether one or several or all stand in the chief place in the state.—“All these forms,” says Fichte (“Naturrecht,” Pt. I., p. 196), “are right, and can produce and preserve universal right, if only there be present an ephorat.” The ephorat was invented by Fichte, and defined as a needful counterpoise to the highest power. Such a view springs from a shallow conception of the state. It is true, indeed, that in a primitive condition of society these distinctions have little or no meaning. So Moses, when giving rules to the people in the case of their choosing a king, made no other alteration in the institutions than to command that the king’s horses and wives should not be too numerous, or his treasure of gold and silver too large (Deut. xvii. 16, and fol.).— Further, it is true that in one sense these three forms are even for the idea a matter of no concern. I mean monarchy in its limited and exclusive signification, in accordance with which it stands by the side of democracy and aristocracy. But such a remark has a meaning the opposite of Fichte’s. It would mean that these forms are a matter of indifference, because they collectively are not in accordance with the idea in its rational development (§272); nor can the idea in any one of them attain its right and actuality. Hence, it is idle to ask which of these forms is to be preferred. We speak of them now as having only an historical interest.
Here, as in so many other places, must be recognized the penetrating vision of Montesquieu, who discusses this question in his celebrated description of the principles of these forms of government. But this description we must not misunderstand, if we are to do it justice. He, as is well known, stated that virtue was the principle of democracy. Democracy does in fact rest upon sentiment as upon a form which is merely substantive. And it is still under this form that the rationality of the absolute will exists in democracy. But he goes on to say that England in the seventeenth century proved by a beautiful spectacle that its efforts to found a democracy were unavailing owing to a lack of virtue in the leaders. And he adds that, when in a republic virtue disappears, ambition seizes upon those whose minds are capable of it, and greed seizes upon all, and the state, becoming a general prey, maintains its strength only through the power of some individuals and the extravagance of all. Upon this view it must be remarked that when society becomes civilized, and the powers of particularity are developed and freed, the virtue of the rulers is not enough. Not mere sentiment, but the form of rational law is required, if the whole is to be able to keep itself together, and give to the developed powers of particularity the right to expand positively as well as negatively.
Similarly should be set aside the misconception that, since in a democratic republic the sentiment of virtue is the substantive form, it is wanting, or at least unnecessary, in a monarchy; and also the misconception that the legally constituted agencies of a systematized organization are opposed to and incompatible with virtue.
Moderation, or the principle of aristocracy, implies the incipient separation of public power and private interest. And yet these two are here in such close contact that aristocracy is always by its very nature on the verge of passing into the severest form of tyranny or anarchy, and so bringing on itself destruction. Witness Roman history.
Montesquieu, by crediting monarchy with the principle of honour, refers, it is clear, not to the patriarchal or any of the ancient monarchies, nor, on the other side, to the monarchy which has developed into an objective constitution, but to a feudal monarchy, in which the relations of political right to lawful private property and the privileges of individuals and corporations are confirmed. Since in this form of constitution state-life depends upon privileged persons, in whose liking is laid a large part of what must be done for the maintenance of the state, the objective element of these transactions is grounded not on duty but on imaginative thought and opinion. Thus, instead of duty it is only honour which keeps the state together.
Here it is natural to put a second question:—Who shall frame the constitution? This question seems intelligible at first glance, but on closer examination turns out to be meaningless. It presupposes that no constitution exists, but merely a collection of atomic individuals. How a heap of individuals is to obtain a constitution, whether by its own efforts or by means of others, whether by goodness, thought, or force, must be left to itself to decide, for with a mere mass the conception has nothing to do. If the question, however, takes for granted the existence of an actual constitution, then to make a constitution means only to modify it, the previous existence of the constitution implying that any change must be made constitutionally. But it is strictly essential that the constitution, though it is begotten in time, should not be contemplated as made. It is rather to be thought of as above and beyond what is made, as selfbegotten and self-centred, as divine and perpetual.
Addition.—The principle of the modern world as a whole is freedom of subjectivity, the principle that all essential aspects of the spiritual whole should attain their right by selfdevelopment. From this standpoint one can hardly raise the idle question, as to which form is the better, monarchy or democracy. We venture to reply simply that the forms of all constitutions of the state are one-sided, if they are not able to contain the principle of free subjectivity, and do not know how to correspond to completed reason.
274. Spirit is real only in what it knows itself to be. The state, which is the nation’s spirit, is the law which permeates all its relations, ethical observances, and the consciousness of its individuals. Hence the constitution of a people depends mainly on the kind and character of its self-consciousness. In it are found both its subjective freedom and the actuality of the constitution.
Note.— To think of giving to a people a consitution a priori is a whim, overlooking precisely that element which renders a constitution something more than a product of thought. Every nation, therefore, has the constitution which suits it and belongs to it.
Addition.— The state must in its constitution penetrate all its aspects. Napoleon insisted upon giving to the Spanish a constitution a priori, but the project failed. A constitution is not a mere manufacture, but the work of centuries. It is the idea and the consciousness of what is reasonable, in so far as it is developed in a people. Hence no constitution is merely created. That which Napoleon gave to the Spanish was more rational than what they had before, yet they viewed it as something foreign to them, and rejected it because they were not sufficiently developed. In a constitution a people must embody their sense of right and reproduce their conditions. Otherwise the constitution may exist externally, but it has no significance or truth. Often, indeed, the need of and longing for a better constitution may arise in individuals, but that is different from the whole multitude’s being saturated by such a notion. This general conviction comes later. The principle of morality and inner conviction advocated by Socrates came of necessity into being in his day; but time had to elapse before it could reach general selfconsciousness.