HKB
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 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.
§ 541. The really living totality,—that which preserves, in other words continually produces the state in general and its constitution, is the government. The organisation which natural necessity gives is seen in the rise of the family and of the ’estates’ of civil society. The government is the universal part of the constitution, i.e. the part which intentionally aims at preserving those parts, but at the same time gets hold of and carries out those general aims of the whole which rise above the function of the family and of civil society. The organisation of the government is likewise its differentiation into powers, as their peculiarities have a basis in principle; yet without that difference losing touch with the actual unity they have in the notion’s subjectivity.