第38章

All they have a right in their circumstances to claim may be no more than that whatever be the mode in which the positive laws are enacted, these laws must not be contrary to the natural laws that demand the freedom of all the people and the equality that is conformable thereto; and it must therefore be made possible for them to raise themselves from this passive condition in the state to the condition of active citizenship.

47.Dignities in the State and the Original Contract.

All these three powers in the state are dignities; and, as necessarily arising out of the idea of the state and essential generally to the foundation of its constitution, they are to be regarded as political dignities.They imply the relation between a universal sovereign as head of the state- which according to the laws of freedom can be none other than the people itself united into a nation- and the mass of the individuals of the nation as subjects.The former member of the relation is the ruling power, whose function is to govern (imperans); the latter is the ruled constituents of the state, whose function is to obey (subditi).

The act by which a people is represented as constituting itself into a state, is termed the original contract.This is properly only an outward mode of representing the idea by which the rightfulness of the process of organizing the constitution may be made conceivable.

According to this representation, all and each of the people give up their external freedom in order to receive it immediately again as members of a commonwealth.The commonwealth is the people viewed as united altogether into a state.And thus it is not to be said that the individual in the state has sacrificed a part of his inborn external freedom for a particular purpose; but he has abandoned his wild lawless freedom wholly, in order to find all his proper freedom again entire and undiminished, but in the form of a regulated order of dependence, that is, in a civil state regulated by laws of right.This relation of dependence thus arises out of his own regulative law giving will.

48.Mutual Relations and Characteristics of the Three Powers.

The three powers in the state, as regards their relations to each other, are, therefore: (1) coordinate with one another as so many moral persons, and the one is thus the complement of the other in the way of completing the constitution of the state; (2) they are likewise subordinate to one another, so that the one cannot at the same time usurp the function of the other by whose side it moves, each having its own principle and maintaining its authority in a particular person, but under the condition of the will of a superior; and further, (3) by the union of both these relations, they assign distributively to every subject in the state his own rights.

Considered as to their respective dignity, the three powers may be thus described.The will of the sovereign legislator, in respect of what constitutes the external mine and thine, is to be regarded as irreprehensible; the executive function of the supreme ruler is to be regarded as irresistible; and the judicial sentence of the supreme judge is to be regarded as irreversible, being beyond appeal.

49.Distinct Functions of the Three Powers.

Autonomy of the State1.The executive power belongs to the governor or regent of the state, whether it assumes the form of a moral or individual person, as the king or prince (rex, princeps).This executive authority, as the supreme agent of the state, appoints the magistrates, and prescribes the rules to the people, in accordance with which individuals may acquire anything or maintain what is their own conformably to the law, each case being brought under its application.Regarded as a moral person, this executive authority constitutes the government.The orders issued by the government to the people and the magistrates, as well as to the higher ministerial administrators of the state (gubernatio), are rescripts or decrees, and not laws; for they terminate in the decision of particular cases, and are given forth as unchangeable.A government acting as an executive, and at the same time laying down the law as the legislative power, would be a despotic government, and would have to be contradistinguished from a patriotic government.A patriotic government, again, is to be distinguished from a paternal government (regimen paternale) which is the most despotic government of all, the citizens being dealt with by it as mere children.A patriotic government, however, is one in which the state, while dealing with the subjects as if they were members of a family, still treats them likewise as citizens, and according to laws that recognize their independence, each individual possessing himself and not being dependent on the absolute will of another beside him or above him.

2.The legislative authority ought not at the same time to be the executive or governor; for the governor, as administrator, should stand under the authority of the law, and is bound by it under the supreme control of the legislator.The legislative authority may therefore deprive the governor of his power, depose him, or reform his administration, but not punish him.This is the proper and only meaning of the common saying in England, "The King- as the supreme executive power- can do no wrong." For any such application of punishment would necessarily be an act of that very executive power to which the supreme right to compel according to law pertains, and which would itself be thus subjected to coercion; which is self-contradictory.