c. Legislative Power
Legislative power concerns the laws as such, in so far as they require further determination, and those internal affairs which, in their content, are wholly universal. This power is itself a part of the constitution, which is presupposed by it and, to that extent, lies in and for itself outside its direct determination, but receives its further development in the progressive formation of the laws and in the progressive character of the universal affairs of government.
Encyclopedia of the Philosophical Sciences in Outline (1827), § 544:
§ 544. c) The estates authority concerns a participation of all those who belong to civil society in general and are, to that extent, private persons, in governmental power — and indeed in the universal aspect of those interests which do not concern the state’s coming forward and acting as an individual (such as war and peace) and therefore [not] belong merely to the nature of princely power on its own — and hence lie nearer to legislation; whereby subjective freedom and imagination, and their general opinion, may show themselves in an existing efficacy, and enjoy the satisfaction of counting for something. |
The division of constitutions into democracy, aristocracy, and monarchy still indicates their difference with the greatest precision in relation to the power of the state. Oriental despotism, for instance, may likewise be subsumed under the vague name of monarchy, as may feudal monarchy, to which even the favored name of constitutional monarchy cannot be denied. The more precise difference of these forms from true monarchy rests on the content of the valid principles of right which have their actuality and guarantee in the power of the state. These principles are those developed in the earlier spheres — of the freedom of property, and, in any case, of personal freedom, of civil society, of its industry and communities, and of the regulated efficacy, dependent on the laws, of the particular authorities.
The most contested question is in what sense the participation of private persons in the affairs of the state is to be conceived. For the members of estates assemblies are first of all to be taken as private persons, whether they hold good as individuals on their own account or as representatives of the many or of the people; for the aggregate of private persons is indeed frequently called the people. As such an aggregate, however, it is vulgus, not populus. The interest of that participation is to be located neither in a superiority of particular insight in general, which private persons are supposed to possess over the state official — the opposite is necessarily the case — nor in a superiority of good will for the universal best — for the members of civil society are precisely those who make their particular interest, and, as chiefly in the feudal condition, that of their privileged corporation, their nearest determination. As experience necessarily shows, for instance, of England, whose constitution is regarded as the freest for the reason that private persons have a preponderant participation in the business of state, that this country lags furthest behind the other cultivated states of Europe in civil and criminal legislation, in the right and freedom of property, in the provisions for art and science, and so forth, and that objective freedom, i.e., rational right, is rather sacrificed to formal freedom and to private interest (this even in the institutions and possessions that are supposed to be devoted to religion). — The interest of a share of private persons in public affairs is to be located in part in the more concrete and therefore more pressing feeling of universal needs, but essentially in the right that the common spirit should also attain, in an ordered and explicit efficacy directed to public business, to the appearance of an externally universal will, and through this satisfaction receive an animation for itself, just as such an animation flows in upon the administrative authorities, which are thereby kept in a present consciousness that, however much they have duties to demand, they equally essentially have rights before them. The citizens are in the state the disproportionately greater multitude, and indeed a multitude of such as are recognized as persons. In them the free will presents its existence as multiplicity, or as its reflective universality, to which actuality is granted through a share in the power of the state. But it has already been remarked, as a moment of civil society (§ 527, 534), that individuals raise themselves out of the external into the substantial universality, the particular genus — the estates; and it is not in the inorganic form of individuals as such (in the democratic manner of voting), but as organic | moments, as estates, that they enter into that share.
Estates assemblies have already, in this respect, been wrongly designated as the legislative power, in so far as they constitute only one branch of that power, in which the particular governmental authorities have an essential share and the princely power has the absolute share of the final decision. Besides, in a cultivated state, legislating can only be a further development of the existing laws, and so-called new laws can only be extremes of particularities whose content has already been prepared, or even provisionally decided, by the practice of the courts. — The so-called financial law, in so far as it comes to the co-determination of the estates, is essentially a governmental matter and is called a law only improperly, in the general sense in which laws are distinguished from governmental resolutions in so far as the latter decide upon particular matters. For finances, even though they concern a complex, nevertheless by their nature concern only the particular, ever newly arising, changeable needs. If, in this connection, the principal component of the requirement were regarded as constant — as indeed it presumably is — then the determination concerning it would have more the nature of a law, but one which should thereby be given once and for all, and not be given anew every year or every few years; the portion that is variable according to time and circumstances in fact concerns the smallest part of the amount, and the determination concerning it has all the less the character of a law. The interest that is placed in the capacity to grant the financial budget ever anew, namely that the estates assembly should thereby possess a means of coercion against the government and hence a guarantee against wrong and violence — this | interest is a superficial semblance; since the provision of finances, necessary for the subsistence of the state, cannot be made conditional upon any other circumstances whatsoever — no more than the government could permit and arrange the provision for the administration of justice only ever for a limited time, so as to reserve to itself, through the threat of suspending the activity of such an institution and through the fear of an ensuing condition of plunder, a means of coercion against private persons.
Moreover, notions of a relationship for which it might be useful and necessary to hold means of coercion in hand rest partly on the false notion of a contractual relationship between government and people, and partly presuppose the possibility of such a divergence of the spirit of the two that, where it obtains, there is no longer any question of constitution and government at all. To conceive of the constitution of the state as a mere constitution of the understanding, i.e., as the mechanism of an equilibrium of powers that are, in their inner nature, external to one another, runs counter to the fundamental idea of what a state is.
Encyclopedia of the Philosophical Sciences in Outline (1830), § 544:
§ 544. 3. The estates authority concerns a participation of all those who belong to civil society in general and are, to that extent, private persons, in governmental power — and indeed in legislation, namely in the universal aspect of those interests which do not concern the state’s coming forward and acting as an individual (such as war and peace) and therefore do not belong exclusively to the nature of princely power. By virtue of this participation, subjective freedom and imagination, and their general opinion, can show themselves in an existing efficacy and enjoy the satisfaction of counting for something. The division of constitutions into democracy, aristocracy, and monarchy still indicates their difference in relation to the power of the state with the greatest precision. At the same time they must be regarded as necessary configurations in the course of development, that is, in the history of the state. It is therefore superficial and foolish to conceive of them as an object of choice. The pure forms of their necessity are connected, in part — in so far as they are finite and transitory — with forms of their degeneration, ochlocracy and so forth, and in part with earlier transitional configurations; neither of these forms is to be confused with those true configurations. Thus, for instance, for the sake of the equivalence that the will of one individual stands at the head of the state, oriental despotism is subsumed under the vague name of monarchy, as is feudal monarchy, to which even the favored name of constitutional monarchy cannot be denied. The true difference of these forms from true monarchy rests on the content of the valid principles of right which have their actuality and guarantee in the power of the state. These principles are those developed in the earlier spheres — of the freedom of property and, in any case, of personal freedom, of civil society, of its industry and of the communities, and of the regulated efficacy, dependent on the laws, of the particular authorities. The question that has been most discussed is in what sense the participation of private persons in the affairs of state is to be conceived. For the members of estates assemblies are first of all to be taken as private persons, whether they hold good as individuals on their own account or as representatives of many or of the people. For the aggregate of private persons is indeed frequently called the people; as such an aggregate, however, it is vulgus, not populus; and in this respect it is the sole purpose of the state that a people should not, as such an aggregate, attain existence, power, and action. Such a condition of a people is the condition of wrongfulness, unethicalness, of unreason in general; in it the people would be only a shapeless, wild, blind force, like that of the agitated, elemental sea, which, however, does not thereby destroy itself, as the people, being a spiritual element, would. One has often been able to hear such a condition represented as that of true freedom. In order for it to make sense to enter into the question of the participation of private persons in universal affairs, it is not the unreasonable that must be presupposed, but already an organized people, that is, one in which a governmental power is present. — The interest of such participation, however, is to be located neither in a superiority of particular insight in general, which private persons are supposed to possess over state officials — the opposite is necessarily the case — nor in a superiority of good will for the universal best — the members of civil society are rather such as make their particular interest, and, as chiefly in the feudal condition, that of their privileged corporation, their nearest determination. As, for example, experience shows of England, whose constitution is on that account regarded as the freest because private persons have a preponderant participation in the business of state, that this country lags furthest behind the other cultivated states of Europe in civil and criminal legislation, in the right and freedom of property, in the provisions for art and science and so forth, and that objective freedom, that is, rational right, is rather sacrificed to formal freedom and to particular private interest (this even in the institutions and possessions that are supposed to be devoted to religion). — The interest of a share of private persons in public affairs is to be located in part in the more concrete and therefore more pressing feeling of universal needs, but essentially in the right that the common spirit should also attain, in an ordered and explicit efficacy directed to public business, to the appearance of an externally universal will, and through this satisfaction likewise receive an animation for itself, just as such an animation flows in upon the administrative authorities, who are thereby kept in a present consciousness that, however much they have duties to demand, they equally essentially have rights before them. The citizens are in the state the disproportionately greater multitude, and a multitude of such as are recognized as persons. Willing reason therefore presents its existence in them as a multiplicity of free persons, or in a reflective universality, to which actuality is granted through a share in the power of the state. But it has already been noted, as a moment of civil society (§ 527, 534), that individuals raise themselves out of the external into the substantial universality, namely as a particular genus — the estates; and it is not in the inorganic form of individuals as such (in the democratic manner of voting), but as organic moments, as estates, that they enter into that share; a power or activity in the state must never appear and act in a formless, inorganic shape, that is, out of the principle of multiplicity and of the mass. The estates assemblies have already, wrongly, been designated in this respect as the legislative power, inasmuch as they constitute only one branch of that power, in which the particular governmental authorities [have] an essential share and the princely power has the absolute share of the final decision. Besides, in a cultivated state legislating can furthermore only be a further development of the existing laws, and so-called new laws can only be extremes of detail and particularities (cf. § 529, Remark), whose content has already been prepared, or even provisionally decided, by the practice of the courts. — The so-called financial law, in so far as it comes to the co-determination of the estates, is essentially a governmental matter; it is called a law only improperly, in the general sense that it comprises a wide, indeed the entire range of the external means of the government. Finances concern, even if the complex, nevertheless by their nature only the particular, ever newly arising, changeable needs. If, in this connection, the principal component of the requirement were regarded as constant — as indeed it presumably is — then the determination concerning it would have more the nature of a law; but in order to be a law, it would have to be given once and for all, and not have to be given anew every year or every few years. The portion that is variable according to time and circumstances in fact concerns the smallest part of the amount, and the determination concerning it has all the less the character of a law; and yet it is, and can only be, this small variable part that is disputable and can be subjected to a variable, yearly determination — which thereby falsely bears the high-sounding name of the granting of the budget, that is, of the whole of the finances. A law to be given for one year and yearly also strikes plain common sense as inappropriate, since it distinguishes the universal in and for itself, as the content of a true law, from a reflective universality that only externally comprises a manifold which by its nature is a many. The name of a law for the yearly fixing of the financial requirement serves only, given the presupposed separation of the legislative from the governmental power, to maintain the deception that this separation actually takes place, and to conceal that the legislative power is in fact occupied with proper governmental business in that it resolves on the finances. — The interest, however, that is placed in the capacity to grant the financial budget ever anew, namely that the estates assembly should thereby possess a means of coercion against the government and hence a guarantee against wrong and violence — this interest is, on the one hand, a superficial semblance, since the provision of finances necessary for the subsistence of the state cannot be made conditional upon any other circumstances whatsoever, nor can the subsistence of the state be put in yearly doubt; no more than the government could, for example, permit and arrange the provision for the administration of justice only ever for a limited time, so as to reserve to itself, through the threat of suspending the activity of such an institution and through the fear of an ensuing condition of plunder, a means of coercion against private persons. On the other hand, however, notions of a relationship for which it might be useful and necessary to hold means of coercion in hand rest partly on the false notion of a contractual relationship between government and people, and partly presuppose the possibility of such a divergence of the spirit of the two that, where it obtains, there is no longer any question of constitution and government at all. If one imagines the empty possibility of helping by such a means of coercion as having come into existence, such help would rather be the derangement and dissolution of the state, in which there would no longer be any government but only parties, and which only the violence and suppression of the one party by the other would remedy. — To conceive of the constitution of the state as a mere constitution of the understanding, that is, as the mechanism of an equilibrium of powers that are, in their inner nature, external to one another, runs counter to the fundamental idea of what a state is.
The constitution must in and for itself be the firm and valid ground on which the legislative power stands, and it therefore need not first be made. The constitution thus is, but just as essentially it becomes, that is, it progresses in its development. This progress is a change that is inconspicuous and does not have the form of change. If, for example, the property of the princes and their families in Germany was at first private property, but then, without struggle or resistance, transformed itself into domains, that is, into state property, this came about because the princes felt the need for the indivisibility of their estates, demanded a guarantee of this from the land and the provincial estates, and thereby involved these in the manner in which the property subsisted, over which they no longer had sole disposition. In a similar way, the emperor was formerly a judge and traveled about the empire administering justice. Through the merely apparent progress of this development it became externally necessary that the emperor increasingly left this judicial office to others, and thus the transition of judicial power from the person of the prince to collegial bodies came about. Thus the further development of a condition is one that seems calm and unnoticed. After a long time, a constitution in this way arrives at a condition quite different from what it was before.
It is striking, first of all, that Hegel emphasizes how »this power is itself a part of the constitution,« which »is presupposed to it and, in and for itself, lies outside its direct determination« — since Hegel had made this remark neither in the case of the princely power nor of governmental power, where it is equally true. But then, Hegel is only now constructing the whole of the constitution, and to that extent cannot presuppose it; yet it is precisely in this that we recognize his depth — that everywhere he begins with the opposition of the determinations (as they exist in our states) and lays the emphasis upon it.
The »legislative power is itself a part of the constitution,« which »in and for itself lies outside its direct determination.« But the constitution, after all, did not make itself either. The laws, which »require further determination,« must after all have been formed. There must exist, or must have existed, a legislative power prior to the constitution and outside the constitution. There must exist a legislative power beyond the real, empirical, posited legislative power. But, Hegel will answer, we presuppose an existing state. Yet Hegel is a philosopher of right and is developing the genus of the state. He may not measure the Idea by what exists; he must measure what exists by the Idea.
The collision is simple. The legislative power is the power to organize the universal. It is the power of the constitution. It reaches beyond the constitution.
But on the other hand, the legislative power is a constitutional power. It is thus subsumed under the constitution. The constitution is law for the legislative power. It has given laws to the legislative power and continually gives them to it. The legislative power is legislative power only within the constitution, and the constitution would stand hors de loi |outside the law| were it to stand outside the legislative power. Voilà la collision! |That is the contradiction!| Within recent French history, a good deal of nibbling around this has gone on.
How does Hegel resolve this antinomy?
At first it is said: the constitution is »presupposed« to the legislative power; it lies »in and for itself, to that extent, outside its direct determination.«
»But« — but »in the further development of the laws« and »in the progressive character of the general affairs of government,« it »receives its further development.«
That is to say: directly, the constitution lies outside the domain of the legislative power; but indirectly, the legislative power alters the constitution. It does by one path what it cannot and may not do by the straight path. It picks it apart en détail, because it cannot alter it en gros. Through the nature of things and of circumstances it does what, by the nature of the constitution, it ought not to do. It does materially, in fact, what it does not do formally, legally, constitutionally.
Hegel has not thereby resolved the antinomy; he has transformed it into another antinomy. He has set the working of the legislative power, its constitutional working, in contradiction with its constitutional determination. The opposition between the constitution and the legislative power remains. Hegel has defined the factual and the legal action of the legislative power as a contradiction — or, likewise, the contradiction between what the legislative power is supposed to be and what it really is, between what it believes itself to be doing and what it really does.
How can Hegel pass off this contradiction as the truth? »The progressive character of the general affairs of government« explains just as little, for it is precisely this progressive character that is supposed to be explained.
In the Addition, Hegel indeed contributes nothing to the solution of the difficulties. But he does bring them out still more clearly.
»The constitution must, in and for itself, be the fixed and valid ground on which the legislative power stands, and for that reason it must not first be made. The constitution therefore is; but just as essentially it becomes — that is, it progresses in its formation. This progression is a change that is inconspicuous and does not have the form of change.«
That is to say, the constitution is, according to the law (the illusion); but it becomes, according to actuality (the truth). According to its determination it is unchangeable, but it really changes — only this change is unconscious, it does not have the form of change. Appearance contradicts essence. Appearance is the conscious law of the constitution, and essence is its unconscious law, contradicting the first. What is in the nature of the matter is not in the law. Rather, its opposite is in the law.
Is this, then, the truth — that in the state, which for Hegel is the highest existence of freedom, the existence of self-conscious reason, it is not the law, the existence of freedom, but blind natural necessity that rules? And if the law of the matter is now recognized as contradicting the legal definition, why not also recognize the law of the matter, of reason, as the law of the state — why hold fast to the dualism only unconsciously, instead of with consciousness? Hegel wants everywhere to present the state as the realization of the free spirit, but re vera |in reality| he resolves all difficult collisions through a natural necessity that stands opposed to freedom. Thus even the transition of the particular interest into the universal is no conscious law of the state, but is mediated by chance, accomplishing itself against consciousness — and yet Hegel wants everywhere, in the state, the realization of the free will! (Herein is shown Hegel’s substantial standpoint.)
The examples Hegel adduces concerning the gradual change of the constitution are unhappily chosen — for instance, that the wealth of the German princes and their families changed from private property into a domain of the state, and that the personal administration of justice by the German emperors changed into the administration of justice through deputies. The first transition took place only in the sense that all property of the state was converted into the private property of the prince.
Moreover, these changes are particular ones. Whole constitutions of the state have indeed changed in such a way that new needs gradually arose, that the old fell into decay, etc.; but a formal revolution has always been needed to reach the new constitution.
»Thus,« Hegel concludes, »the further development of a condition is an apparently calm and unnoticed one. After a long time, a constitution in this way arrives at an entirely different condition from what it had before.«
The category of gradual transition is, in the first place, historically false, and in the second place, explains nothing.
In order that change is not merely inflicted upon the constitution — so that this illusory appearance is not finally shattered by force — in order that the human being do consciously what he is otherwise, without consciousness, compelled by the nature of the matter to do, it is necessary that the movement of the constitution, that progress itself, be made the principle of the constitution — that is, that the real bearer of the constitution, the people, be made the principle of the constitution. Progress itself is then the constitution.
Should, then, the »constitution« itself belong within the domain of the »legislative power«? This question can only be raised: (1) if the political state exists as a mere formalism of the real state, if the political state is an apart domain, if the political state exists as »constitution«; (2) if the legislative power is of a different origin from the governmental power, etc.
The legislative power made the French Revolution; wherever, in its particularity, it appeared as the ruling power, it has in general made the great organic, universal revolutions; it fought not against the constitution, but against a particular, antiquated constitution — precisely because the legislative power was the representative of the people, of the will of the species. Governmental power, by contrast, has made the small revolutions, the retrograde revolutions, the reactions; it revolutionized not on behalf of a new constitution against an old one, but against the constitution as such — precisely because governmental power was the representative of the particular will, of subjective arbitrariness, of the magical part of the will.
If the question is put correctly, it reads only: Does the people have the right to give itself a new constitution? This must be affirmed unconditionally, since the constitution, as soon as it has ceased to be the real expression of the will of the people, has become a practical illusion.
The collision between the constitution and the legislative power is nothing but a conflict of the constitution with itself, a contradiction within the concept of the constitution.
The constitution is nothing but an accommodation between the political and the unpolitical state; it is therefore necessarily, within itself, a treaty between essentially heterogeneous powers. Here, then, it is impossible for the law to declare that one of these powers, one part of the constitution, should have the right to modify the constitution itself, the whole.
If the constitution is to be spoken of as something particular, it must rather be regarded as a part of the whole.
If by the constitution were understood the universal determinations, the fundamental determinations of the rational will, then it goes without saying that every people (state) has these as its presupposition, and that they must form its political creed. This is really a matter of knowledge, not of will. The will of a people can no more go beyond the laws of reason than can the will of an individual. In the case of an unreasonable people, there can be no talk at all of a rational organization of the state. Here in the philosophy of right, moreover, our object is the will of the species.
The legislative power does not make the law; it only discovers and formulates it.
Attempts have been made to resolve this collision through the distinction between assemblée constituante and assemblée constituée |constituent assembly and constituted assembly|.
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