The German Constitution

I The Concept of the State

A mass of people can call itself a state only if it is united for the common defence of the totality of its property. Although this is in fact self-evident, it should nevertheless be pointed out that this union should not only have the intention of defending itself, but actually does defend itself by force of arms, whatever power and success it may have. For no one will be able to deny that Germany is united in law and in words for its common defence; but we cannot distinguish here between laws and words on the one hand and deeds and actuality on the other, or say that Germany defends itself collectively at least in law and in words, if not in deeds and actuality. For property and its defence through a political union are things which refer exclusively to reality [Realitšt], and whose ideal equivalent [Idealitšt] is anything but a state.

Plans and theories have a claim to reality in so far as they are practicable, but their value is the same whether they exist in actuality or not; a theory of the state, on the other hand, can be called a state and constitution only in so far as it actually exists. If Germany were to claim to be a state and constitution despite the fact that the forms of these were devoid of life and their theory lacked actuality, it would be stating an untruth; but if it actually promised in words [to provide] a common defence, we would have to attribute this either to senile weakness, which still has volition but is no longer able [to put it into practice], or to dishonesty, which does not keep its promises.

For a mass [of people] to form a state, it is necessary that it should form a common military force and political authority. But the manner in which the particular effects and aspects of the union which result from this are present, or the particular constitution [which is chosen], is irrelevant to the formation of an authority, by a mass [of people]. The ingredients required for this particular operation may in any case be present in the most diverse ways; and in a specific state, there may, even be complete irregularity and disparity in such matters. In considering these, we must distinguish between two things: between what is necessary for a mass [of people] to become a state and common authority, and what is merely a particular modification of this authority and does not belong to the sphere of the necessary but, in conceptual terms, to the sphere of greater or lesser improvement and, in terms of actuality, to the sphere of chance and arbitrary will.

This distinction has a very important aspect for the peace of states, the security of governments, and the liberty of peoples. For if the universal political authority demands of the individual only what is necessary for itself, and places appropriate limits on the measures required for the performance of this necessary service, it may in other respects grant the citizens their living freedom and individual [eigenen] will and even leave considerable scope for the latter.” In the same way, the political authority, which is concentrated in the government as its necessary centre, is looked on less enviously by the individuals on the periphery if it demands [only] what is necessary and what everyone can recognise as indispensable to the whole. It thereby avoids the danger that, if the central political authority is responsible both for what is necessary and for more arbitrary things, and if both are demanded with equal strictness as [requirements] of the government, the citizens may also confuse the two and, if they grow equally impatient with both, they may place the necessary demands of the state in jeopardy.

The manner in which the whole political authority exists in a supreme point of convergence [Vereinigungspunkt] must be relegated to that part of the state’s actuality which is governed by chance. Whether the authority is vested in one [person] or many, whether the one or the many are born to such majesty, or elected to it, is of no importance in relation to the one essential factor [das einzig Notwendige], namely that a mass [of people] should form a state; it is just as irrelevant as the uniformity or lack of uniformity of civil rights among the individuals who are subject to the universal political authority. We are not in any case concerned with that inequality of nature, talents, and mental energy [Energie der Seele] which creates a much more considerable difference than does inequality of civil circumstances. The fact that a state counts among its subjects serfs, burghers, free nobility, and princes who in turn have subjects themselves, and that the relationships of these particular classes [Stande], even as particular members of the polity, do not exist in a pure form but in endless modifications, does as little to prevent a mass [of people] from forming a political authority as does the fact that the particular geographical members [of the state] constitute provinces with different relations to the inner constitutional law.

As far as actual civil laws and the administration of justice are concerned, neither identical laws and legal processes nor identical weights, measures, and currency would make Europe a state; nor does their diversity nullify [aufheben] the unity of a state. If it were not inherent in the very concept of the state that the more precise determinations of legal relationships involving the property of individuals in opposition to other individuals do not impinge on the

state as a political authority — for the latter has to determine only its own relationship to property — the example of nearly all European states could teach us as much, because the most powerful of the genuine states have utterly disparate laws. Before the Revolution, France had such a multiplicity of laws that, in addition to the Roman law which obtained in many provinces, Burgundian law, Breton law, etc. prevailed in others, and almost every province, indeed almost every city, had a particular inherited law. A French writer truthfully said that anyone who travelled through France changed laws as often as he changed post-horses.

Another question extraneous to the concept of the state is which particular power is responsible for legislation, and what relative share the various estates or citizens in general have in this process. Likewise irrelevant is the character of the courts of law — whether, in the various instances of the administration of justice, the members inherit their office, are appointed to it by the supreme authority, or are freely entrusted with it by the citizenry or nominated by the courts themselves. It is also immaterial what the scope of a specific court’s jurisdiction is, whether this has been determined by chance, whether there is a common supreme court for the entire state, etc.

Equally independent of the state is the form of administration in general; it may likewise lack uniformity, as may the institutions of the magistracy, the rights of cities and estates, etc. All these circumstances are only relatively important for the state, and the form of their organisation is irrelevant to its true essence.

In all European states, unequal taxes are imposed on the various classes according to their material worth; but there is even more inequality on the ideal side, namely in their rights and duties and in the origin of these. The inequality of wealth gives rise to an inequality of contributions to the state’s expenditure, but this is so little a hindrance to the state that the more modern states are in fact based on it. It is just as little affected by the inequality of contributions by the different estates of nobility, clergy, and the burghers and peasantry; and apart from everything that is called privilege, the reason why these estates contribute in different proportions lies in the difference between the estates [themselves], for the proportion can be determined only in terms of what they produce, not in terms of the essential aspect of what the contribution is levied on, name in terms of work — for work cannot be quantified and is inherently unequal.

It is also fortuitous whether the different geographical parts of a state are differently weighted [for tax purposes], what transformations and subordinate systems the taxes pass through, whether a city receives the land tax, a private individual the ground rent, an abbey the tithes, the nobleman the hunting rights, the [rural] commune the grazing rights, etc. from one and the same field, and whether the various estates and bodies of all kinds develop their own arrangements with regard to taxation. All such fortuitous circumstances remain external to the concept of political authority, to which, as the central point, only the determinate quantity [of taxation] is necessary, whereas the unequal proportions in which the contributions flow in are irrelevant as far as their origin is concerned. Besides, the entire fiscal arrangements may in any case lie outside the state while the latter is nevertheless very powerful, as in the old feudal system, in which [the vassal], in serving the state in emergencies, at the same time supplied all his needs by his personal efforts, while the state derived from its own domains the income it required for other purposes. Alternatively, it is also conceivable that all expenditure might be financed in the latter manner, in which case the state [in question], even as a monetary power which a state has to be in modern times — would not be a centre of taxation; on the contrary, what the state collected as taxes, given the actual arrangements applying to most of these, would be on the same footing of particular right [Recht] as [the income of other people whose relationship to the state was that of private individuals.

In our times, the links between members [of a state] may be equally loose, or even non-existent, as far as customs, education, and language are concerned; and identity in these respects, which was once a pillar of national union, now counts as one of those fortuitous circumstances whose nature does not prevent a mass [of people] from constituting a political authority. Rome or Athens, and even any small modern state, could not have survived if the many languages in use in the Russian empire had been spoken within their frontiers, or if the customs of their citizens had been as varied as they are in Russia (or as customs and culture [Bildung] are even in any major city in a large country). Diversity of language and dialect, the latter of which makes divisions more vexatious than does total incomprehensibility, and diversity of customs and culture among the separate estates, which makes it almost impossible for people to recognise one another except by their outward appearance — such heterogeneous and at the same time most powerful elements could be overcome and held together in the enlarged Roman Empire only by the weight of superior power, just as they are in modern states by the spirit and art of political organisation. Consequently, disparity of culture and customs has become a necessary product, as well as a necessary condition, of the continued existence of modern states.

It is in religion that the innermost being of mankind is expressed and in which, as a fixed centre, human beings can still recognise themselves, even if all other external things scattered around them are of no consequence. Only by this means could they manage to trust and be sure of one another, despite the inequality and mutability of their other relationships and situations. But even the need to find identity at least in this sphere has been found superfluous in modern states.

Even in the northern part of Europe, religious unity has always been the prerequisite of a state. No alternative was known, and without this original oneness, no other oneness or trust seemed possible. At times, this bond has itself become so powerful that, on certain occasions, it has suddenly transformed peoples who had previously been alien to one another or national enemies into a single state. A state of this kind has been not just a holy community of Christians, nor a coalition uniting their interests and the activity associated with these, but a single secular power and state which, as a single people and army, has also conquered the homeland of its own eternal and temporal life in a war against the East.

Neither before this time nor after the fragmentation [of Christendom] into nations [Volker] has a shared religion prevented wars or united the nations into a single state — no more than religious diversity causes any state to break up in our own times. Political authority, as pure political right [Staatsrecht], has managed to separate itself from religious authority and its right, to preserve sufficient stability of its own, and to organise itself in such a way that it has no need of the Church; it has thereby returned the Church to that condition of separation from the state which it occupied in relation to the Roman state at the time of its origin.

Admittedly, in those political theories which, in our own times, have either been propounded by would-be philosophers and teachers of human rights or realised in vast political experiments everything we have excluded from the necessary concept of political authority — except the most important [aspects] of all, namely language, culture [Bildung], customs, and religion — is subordinated to the immediate activity of the supreme political authority. As a result, it is determined by this authority, and all these aspects [referred to above] are drawn into it even in their smallest ramifications.

It is self-evident that the highest political authority must exercise ultimate control of the internal relations of a people and of their organisation as determined by chance and the arbitrary will of former times, and ensure that these factors do not impede the main activity of the state; on the contrary, the latter activity must secure itself above all these, and to this end, it must not spare the subordinate systems of rights and privileges. But it is a great advantage of the older European states that, while their political authority is secure in respect of its needs and functions, it leaves free scope for the citizens’ own activity in individual aspects of judicial procedure [Rechtspflege], administration, etc. — both in the appointment of the necessary officials and in the conduct of current business and the application of laws and conventions.

Given the size of modern states, it is quite impossible to realise the ideal of giving all free men a share in the discussion and resolution [Bestimmung] of universal political issues. Political authority, must be concentrated in one centre, both for the implementation [of decisions] by the government, and for the decisions themselves. If popular respect ensures that this centre is secure in itself and immutably sanctified in the person of a monarch chosen by birth and in accordance with natural law, the political authority can freely allow the subordinate systems and bodies, without fear or jealousy, to regulate a large part of the relationships which arise in society, and to maintain them in accordance with the laws; and every estate, city, village, commune, etc. can enjoy the freedom to do and implement for itself what lies within its province. just as the laws on such matters have gradually arisen as a hallowed tradition directly out of custom itself, so the legal constitution, the institutions of the lower judiciary, the corresponding rights of the citizens, the rights of city administrations, the collection of taxes (whether national or those required for the needs of the cities themselves) and the lawful application of such taxes everything is this category has come together of its own accord and developed by itself, and it has likewise maintained itself ever since it first emerged.

The highly complex organisation of the ecclesiastical establishments is not the work of the supreme political authority either, and the whole [ecclesiastical] estate maintains and renews itself more or less internally. — The large sums spent annually on the poor in a large state, and the extensive arrangements made for this purpose throughout all parts of a country, are not financed by state-imposed charges, nor is the whole establishment maintained and run on the state’s instructions. The mass of property and income devoted to this end derives from foundations and gifts by individuals, just as the whole establishment and its administration and operation [are] independent of the supreme political authority. In the same way, the majority of internal social arrangements for each specific area of need have been created by the free action of the citizens, and their continuance and life are sustained by this very freedom, undisturbed by any jealousy or anxiety on the part of the supreme political authority — except that the government to some extent protects them, or limits the excessive growth of any part of such arrangements which might suppress other necessary parts.

It is, however, a basic prejudice of those recent theories which have been partially translated into practice that a state is a machine with a single spring which imparts movement to all the rest of its infinite mechanism, and that all the institutions which the essential nature of a society brings with it should emanate from the supreme political authority and be regulated, commanded, supervised, and directed by it.

The pedantic craving to determine every detail, the illiberal jealousy of all direction and administration by an estate, corporation, etc., of its own affairs, this pusillanimous carping at all independent activity on the part of the citizens — even if its significance is purely general and of no relevance to the political authority — has been dressed up in the guise of rational principles. According to these principles, not one farthing of the communal expenditure for the relief of poverty in a country of twenty or thirty million inhabitants [may be spent] unless it has first been not merely approved, but ordained, controlled, and inspected by the supreme government. As for educational provisions, the appointment of every village schoolmaster, the expenditure of every penny on a pane of glass in the village school or the parish council chamber, the appointment of every toll-clerk, bailiff, or village magistrate should be directly instigated and effected by the highest governmental authority; and in the entire state, every morsel of food, from the soil that produces it to the mouth that consumes it, should follow a course that is examined, computed, corrected, and ordained by state, law, and government.

This is not the place to argue in detail that the centre, as the political authority and government, must leave to the freedom of the citizens whatever is not essential to its own role [Bestimmung] of organising and maintaining authority, and hence to its external and internal security, and that nothing should be so sacred to it as the approval and protection of the citizens’ free activity in such matters, regardless of utility; for this freedom is inherently sacred.

But as far as utility is concerned, if we are to calculate the advantage that is gained if the citizens administer their own affairs through particular bodies, their own judicial procedure, their own appointments to the offices required for this purpose, etc., three calculations are necessary. The first concerns the tangible factor, i.e. the money which thereby accrues to the supreme political authority; the second concerns the ingenuity [Verstand] and efficiency with which all the operations of a machine proceed at a regular pace, in accordance with the shrewdest calculation and the wisest ends; but the third concerns the vitality, the contented spirit and free and self-respecting confidence which result if the individual will has a share in universal affairs (in so far as their ramifications are contingent from the point of view of the supreme political authority).

As to the first calculation (concerning tangible advantage), the state whose principle is universal mechanism fancies that it has an undoubted advantage over the state which leaves [matters of] detail largely to the rights and individual action of its citizens. But it should be noted in general that the former state cannot possibly have the advantage unless it imposes altogether heavier taxes. For when it takes over all branches of administration, judicial procedures, etc., it simultaneously incurs all the associated costs; and if the whole [state] is organised as a universal hierarchy, these costs must also be covered by regular taxation. Conversely, the state which leaves it to interested individual groups [Einzelheiten] to make the necessary arrangements for such purely contingent individual matters as the administration of justice, costs of education, contributions to poor relief, etc., and to bear the associated costs, will find that these costs are met in a form other than by taxation. Whoever requires a judge, an advocate, or a teacher, or who cares for the poor on his own initiative, alone bears the cost. No tax is levied, and no one pays for a court, an advocate, a teacher, or a clergyman unless he requires one. Similarly, if [someone] is elected to [one of] the lower positions of authority in a court of law or the administration of civic or corporate affairs, and if he is elected by the members themselves, that person is paid by, the honour which is thereby, done to him; but if he is employed by, the state, he must demand that the latter pay him, because this inherent honour is no longer present. Even if more money might have to be spent by the people in the first of these two cases than in the second (although this is unlikely), the effects in each case are as follows. The first makes the difference that no one spends money on something which he finds unnecessary, on something which is not a universal need of the state; and the second produces an actual saving for everyone. The overall effect is that the people feel themselves treated in the first case in a rational manner and in accordance with necessity, and in the latter case with trust and freedom; and this is what constitutes the main difference between the second and third types of calculation [referred to above].

The mechanistic hierarchy, highly ingenious and dedicated to noble ends, extends no trust whatsoever towards its citizens, and therefore cannot expect any from them in return. It has no confidence in any, achievement whose direction and execution it did not itself organise; it therefore prohibits voluntary. donations and sacrifices, and displays to its subjects its conviction of their lack of understanding, its contempt for their ability, to judge and perform what is conducive to their private welfare, and its belief in universal depravity. It therefore cannot hope for any lively activity or support from the self-confidence of its citizens.

There is a difference here which is too great to be grasped by a statesman who takes account only of what can be quantified in precise figures. This difference can be seen most obviously in the prosperity — , well-being, probity, and contentment of the inhabitants of the one state, as compared with the apathy, baseness (which constantly turns into effrontery), and poverty of the other. In matters of major importance where only the contingent aspect of the event is outwardly visible, a state of the latter kind determines this very, contingency and renders it necessary.

It makes an infinite difference whether the political authority is organised in such a way that everything on which it can rely is in its own hands (although for this very reason it cannot rely on anything else), or whether, apart from what is in its own hands, it can also rely on the free allegiance, self-confidence, and individual enterprise of the people — on an all-powerful, indomitable spirit which the hierarchical state has expelled and which lives only where the supreme political authority leaves as much as possible in the care of the citizens themselves. Only the future can tell how dreary and spiritless life will be in a modern state like that which the French Republic has become, in which everything is regulated from above, and where nothing of universal significance is entrusted to the management and execution of interested sections of the people — if, that is, the present pedantic style of government can survive. But what [sort of] life and what aridity prevails in another similarly regulated state, namely Prussia, will strike anyone who enters its first village or observes its complete lack of scientific and artistic genius, and who does not measure its strength in terms of the transient energy which a solitary genius was able for a time to extract from it.

Thus, we do not only distinguish between that necessary element within a state which must remain in the hands of the political authority and be directly determined by it, and that element which, though absolutely necessary for the social cohesion of a people, is contingent as far as the public authority as such is concerned. We also regard a people as fortunate if the state allows it considerable freedom in subordinate activities of a universal kind, and we likewise regard a political authority as infinitely, strong if it can be supported by a greater spirit of freedom, untainted by pedantry, among its people.

Thus, the illiberal demand that laws, the administration of justice, the imposition and collection of taxes, etc., language, customs, culture [Bildung], and religion should be regulated and governed from a single centre is not fulfilled in Germany; on the contrary, the most disparate variety prevails in these matters. But this would not prevent Germany from constituting a state it if were organised in other respects as a political authority.

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