B. External Constitutional Law
External constitutional law proceeds from the relation between independent states; what is in and for itself [valid] within this relation therefore takes the form of an ought, because its being actual rests upon distinct sovereign wills.
Encyclopedia of the Philosophical Sciences in Outline (1817), §§ 446, 447:
§ 446. Through the state of war, however, the mutual recognition of the free individualities of peoples is brought about; or else, that which prefers the finite subsistence of its particular existence to the infinite honor of freedom and courage obtains what it willed – its subjugation and the cessation of its independence. In the former case, however, peace ensues by way of a settlement, which is meant to last forever.
§ 447. The external constitutional law rests, therefore, partly on positive treaties, which fix the entitlements of peoples with respect to one another – rights which, however, lack true actuality; (§ 443) partly on so-called international law, whose universal principle is, on the one hand, the presupposed recognizedness of states, and which therefore restricts the otherwise unconstrained actions against one another in such a way that the possibility of peace remains; – and, on the other hand, distinguishes individuals as private persons from the state; – and rests, in general, on custom.
Encyclopedia of the Philosophical Sciences in Outline (1827), § 547:
§ 547. Through the state of war, the independence of states is put at stake, and, on the one side, the mutual recognition of the free individualities of peoples is brought about (§ 430), and, through peace settlements, which are meant to last forever, both this universal recognition and the particular entitlements of peoples with respect to one another are fixed. (§ 493) The external constitutional law rests partly on these positive treaties, which, however, insofar contain only rights that lack true actuality (§ 545); partly on so-called international law, whose universal principle is the presupposed recognizedness of states, and which therefore restricts the otherwise unconstrained actions against one another in such a way that the possibility of peace remains; – it also distinguishes individuals as private persons from the state; and rests, in general, on custom.
Encyclopedia of the Philosophical Sciences in Outline (1830), § 547:
§ 547. Through the state of war, the independence of states is put at stake, and, on one side, the mutual recognition of the free individualities of peoples is brought about (§ 430), and, through peace settlements, which are meant to last forever, both this universal recognition and the particular entitlements of peoples with respect to one another are fixed. The external constitutional law rests partly on these positive treaties, but insofar contains only rights that lack true actuality (§ 545); partly on so-called international law, whose universal principle is the presupposed recognizedness of states, and which therefore restricts the otherwise unconstrained actions against one another in such a way that the possibility of peace remains, – it also distinguishes individuals as private persons from the state and rests, in general, on custom.
States are not private persons, but wholly independent totalities in themselves, and so their relation presents itself as other than a merely moral and private-legal one. States have often been wanted to be taken in terms of private right and morality, but with private persons the position is such that they have over them a court that realizes what is right in itself. Now a relation between states is indeed also supposed to be right in itself, but in worldly existence what is in itself must also have power. Since, then, there is no power present that decides, as against the state, what is right in itself, and that realizes this decision, in this respect matters must always remain at the level of an ought. The relation of states is that of independent entities which stipulate among themselves, but at the same time stand above these stipulations.
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