第39章

3.Further, neither the legislative power nor the executive power ought to exercise the judicial function, but only appoint judges as magistrates.It is the people who ought to judge themselves, through those of the citizens who are elected by free choice as their representatives for this purpose, and even specially for every process or cause.For the judicial sentence is a special act of public distributive justice performed by a judge or court as a constitutional administrator of the law, to a subject as one of the people.Such an act is not invested inherently with the power to determine and assign to any one what is his.Every individual among the people being merely passive in this relation to the supreme power, either the executive or the legislative authority might do him wrong in their determinations in cases of dispute regarding the property of individuals.It would not be the people themselves who thus determined, or who pronounced the judgements of "guilty" or "not guilty" regarding their fellow-citizens.For it is to the determination of this issue in a cause that the court has to apply the law; and it is by means of the executive authority, that the judge holds power to assign to every one his own.Hence it is only the people that properly can judge in a cause- although indirectly representatives elected and deputed by themselves, as in a jury.It would even be beneath the dignity of the sovereign head of the state to play the judge; for this would be to put himself into a position in which it would be possible to do wrong, and thus to subject himself to the demand for an appeal to a still higher power (a rege male informato ad regem melius informandum).

It is by the co-operation of these three powers- the legislative, the executive, and the judicial- that the state realizes its autonomy.

This autonomy consists in its organizing, forming, and maintaining itself in accordance with the laws of freedom.In their union the welfare of the state is realized.Salus reipublicae suprema lex.* By this is not to be understood merely the individual well-being and happiness of the citizens of the state; for- as Rousseau asserts- this end may perhaps be more agreeably and more desirably attained in the state of nature, or even under a despotic government.But the welfare of the state, as its own highest good, signifies that condition in which the greatest harmony is attained between its constitution and the principles of right- a condition of the state which reason by a categorical imperative makes it obligatory upon us to strive after.

*["The health of the state is the highest law."]

Constitutional and Juridical Consequences arising from the Nature of the Civil Union.

A.Right of the Supreme Power; Treason; Dethronement;Revolution; Reform.

The origin of the supreme power is practically inscrutable by the people who are placed under its authority.In other words, the subject need not reason too curiously in regard to its origin in the practical relation, as if the right of the obedience due to it were to be doubted (jus controversum).For as the people, in order to be able to abjudicate with a title of right regarding the supreme power in the state, must be regarded as already united under one common legislative will, it cannot judge otherwise than as the present supreme head of the state (summus imperans) wills.The question has been raised as to whether an actual contract of subjection (pactum subjectionis civilis) originally preceded the civil government as a fact; or whether the power arose first, and the law only followed afterwards, or may have followed in this order.But such questions, as regards the people already actually living under the civil law, are either entirely aimless, or even fraught with subtle danger to the state.

For, should the subject, after having dug down to the ultimate origin of the state, rise in opposition to the present ruling authority, he would expose himself as a citizen, according to the law and with full right, to be punished, destroyed, or outlawed.A law which is so holy and inviolable that it is practically a crime even to cast doubt upon it, or to suspend its operation for a moment, is represented of itself as necessarily derived from some supreme, unblameable lawgiver.And this is the meaning of the maxim, "All authority is from God", which proposition does not express the historical foundation of the civil constitution, but an ideal principle of the practical reason.It may be otherwise rendered thus: "It is a duty to obey the law of the existing legislative power, be its origin what it may."Hence it follows, that the supreme power in the state has only rights, and no (compulsory) duties towards the subject.Further, if the ruler or regent, as the organ of the supreme power, proceeds in violation of the laws, as in imposing taxes, recruiting soldiers, and so on, contrary to the law of equality in the distribution of the political burdens, the subject may oppose complaints and objections (gravamina) to this injustice, but not active resistance.

There cannot even be an Article contained in the political constitution that would make it possible for a power in the state, in case of the transgression of the constitutional laws by the supreme authority, to resist or even to restrict it in so doing.For, whoever would restrict the supreme power of the state must have more, or at least equal, power as compared with the power that is so restricted; and if competent to command the subjects to resist, such a one would also have to be able to protect them, and if he is to be considered capable of judging what is right in every case, he may also publicly order resistance.But such a one, and not the actual authority, would then be the supreme power; which is contradictory.