Hegel's Philosophy of Mind

by Georg Wilhelm Friedrich Hegel

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 [pg 132] 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 [pg 134] 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 [pg 135] 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, [pg 136] 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 [pg 137] 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.