Constitutional Law

A. Constitutional Law

§ 260 The state is the actuality of concrete freedom. But concrete freedom consists in this, that personal individuality and its particular interests not only achieve their complete development and gain explicit recognition for their right (as they do in the sphere of the family and civil society) but, for one thing, they also pass over of their own accord into the interest of the universal, and, for another thing, they know and will the universal; they even recognise it as their own substantive mind; they take it as their end and aim and are active in its pursuit. The result is that the universal does not prevail or achieve completion except along with particular interests and through the co-operation of particular knowing and willing; and individuals likewise do not live as private persons for their own ends alone, but in the very act of willing these they will the universal in the light of the universal, and their activity is consciously aimed at none but the universal end. The principle of modern states has prodigious strength and depth because it allows the principle of subjectivity to progress to its culmination in the extreme of self-subsistent personal particularity, and yet at the same time brings it back to the substantive unity and so maintains this unity in the principle of subjectivity itself. Addition: The Idea of the state in modern times has a special character in that the state is the actualisation of freedom not in accordance with subjective whim but in accordance with the concept of the will, i.e. in accordance with its universality and divinity. Immature states are those in which the Idea of the state is still veiled and where its particular determinations have not yet attained free self-subsistence. In the states of classical antiquity, universality was present, but particularity had not then been released, given free scope, and brought back to universality, i.e. to the Universal end of the whole. The essence of the modern state is that the universal be bound up with the complete freedom of its particular members and with private well-being, that thus the interests of family and civil society must concentrate themselves on the state, although the universal end cannot be advanced without the personal knowledge and will of its particular members, whose own rights must be maintained. Thus the universal must be furthered, but subjectivity on the other hand must attain its full and living development. It is only when both these moments subsist in their strength that the state can be regarded as articulated and genuinely organised.

§ 261 In contrast with the spheres of private rights and private welfare (the family and civil society), the state is from one point of view an external necessity and their higher authority; its nature is such that their laws and interests are subordinate to it and dependent on it. On the other hand, however, it is the end immanent within them, and its strength lies in the unity of its own universal end and aim with the particular interest of individuals, in the fact that individuals have duties to the state in proportion as they have rights against it (see § 155). Remark: In the Remark to § 3 above, reference was made to the fact that it was Montesquieu above all who, in his famous work L’Esprit des Lois, kept in sight and tried to work out in detail both the thought of the dependence of laws – in particular, laws concerning the rights of persons – on the specific character of the state, and also the philosophic notion of always treating the part in its relation to the whole.

Duty is primarily a relation to something which from my point of view is substantive, absolutely universal. A right, on the other hand, is simply the embodiment of this substance and thus is the particular aspect of it and enshrines my particular freedom. Hence at abstract levels, right and duty appear parcelled out on different sides or in different persons. In the state, as something ethical, as the inter-penetration of the substantive and the particular, my obligation to what is substantive is at the same time the embodiment of my particular freedom. This means that in the state duty and right are united in one and the same relation. But further, since none the less the distinct moments acquire in the state the shape and reality peculiar to each, and since therefore the distinction between right and duty enters here once again, it follows that while implicitly, i.e. in form, identical, they at the same time differ in content. In the spheres of personal rights and morality, the necessary bearing of right and duty on one another falls short of actualisation; and hence there is at that point only an abstract similarity of content between them, i.e. in those abstract spheres, what is one man’s right ought also to be another’s, and what is one man’s duty ought also to be another’s. The absolute identity of right and duty in the state is present in these spheres not as a genuine identity but only as a similarity of content, because in them this content is determined as quite general and is simply the fundamental principle of both right and duty, i.e. the principle that men, as persons, are free. Slaves, therefore, have no duties because they have no rights, and vice versa. (Religious duties are not here in point.)

In the course of the inward development of the concrete Idea, however, its moments become distinguished and their specific determinacy becomes at the same time a difference of content. In the family, the content of a son’s duties to his father differs from the content of his rights against him; the content of the rights of a member of civil society is not the same as the content of his duties to his prince and government. This concept of the union of duty and right is a point of vital importance and in it the inner strength of states is contained. Duty on its abstract side goes no farther than the persistent neglect and proscription of a man’s particular interest, on the ground that it is the inessential, even the discreditable, moment in his life. Duty, taken concretely as Idea, reveals the moment of particularity as itself essential and so regards its satisfaction as indisputably necessary. In whatever way an individual may fulfil his duty, he must at the same time find his account therein and attain his personal interest and satisfaction. Out of his position in the state, a right must accrue to him whereby public affairs shall be his own particular affair. Particular interests should in fact not be set aside or completely suppressed; instead, they should be put in correspondence with the universal, and thereby both they and the universal are upheld. The isolated individual, so far as his duties are concerned, is in subjection; but as a member of civil society he finds in fulfilling his duties to it protection of his person and property, regard for his private welfare, the satisfaction of the depths of his being, the consciousness and feeling of himself as a member of the whole; and, in so far as he completely fulfils his duties by performing tasks and services for the state, he is upheld and preserved. Take duty abstractly, and the universal’s interest would consist simply in the completion as duties of the tasks and services which it exacts.

Addition: In the state everything depends on the unity of universal and particular. In the states of antiquity, the subjective end simply coincided with the state’s will. In modern times, however, we make claims for private judgment, private willing, and private conscience. The ancients had none of these in the modern sense; the ultimate thing with them was the will of the state. Whereas under the despots of Asia the individual had no inner life and no justification in himself, in the modern world Man insists on respect being paid to his inner life. The conjunction of duty and right has a twofold aspect: what the state demands from us as a duty is eo ipso our right as individuals, since the state is nothing but the articulation of the concept of freedom. The determinations of the individual will are given an objective embodiment through the state and thereby they attain their truth and their actualisation for the first time. The State is the one and only prerequisite of the attainment of particular ends and welfare.

§ 262 The actual Idea is mind, which, sundering itself into the two ideal spheres of its concept, family and civil society, enters upon its finite phase, but it does so only in order to rise above its ideality and become explicit as infinite actual mind. It is therefore to these ideal spheres that the actual Idea assigns the material of this its finite actuality, viz. human beings as a mass, in such a way that the function assigned to any given individual is visibly mediated by circumstances, his caprice and his personal choice of his station in life (see § 185 and the Remark thereto). Addition: In Plato’s state, subjective freedom does not count, because people have their occupations assigned to them by the Guardians. In many oriental states, this assignment is determined by birth. But subjective freedom, which must be respected, demands that individuals should have free choice in this matter.

§ 263 In these spheres in which its moments, particularity and individuality, have their immediate and reflected reality, mind is present as their objective universality glimmering in them as the power of reason in necessity (see § 184), i.e. as the institutions considered above. Addition: The state, as mind, sunders itself into the particular determinations of its concept, of its mode of being. We might use here an illustration drawn from nature. The nervous system is the sensitive system proper; it is the abstract moment, the moment of being by oneself and so of having identity with oneself. But analysis of sensation reveals, that it has two aspects and these are distinct in such a way that each of them seems to be a whole system by itself. The first is feeling in the abstract, keeping oneself self-enclosed, the dull movement which goes on internally, reproduction, internal self-nutrition, growth, and digestion. The second moment is that this self-related existence has over against it the moment of difference, a movement outwards. This is irritability, sensation moving outwards. This constitutes a system of its own, and there are some of the lower types of animals which have developed this system alone, while they lack the soul-charged unity of inner sensation. If we compare these natural features with those of mind, then the family must be paralleled with sensibility and civil society with irritability. Now the third is the state, the nervous system as a whole, something inwardly organised; but this lives only in so far as both moments (in this case family and civil society) are developed within it. The laws regulating family and civil society are the institutions of the rational order which glimmers in them. But the ground and final truth of these institutions is mind, their universal end and known objective. The family too is ethical, only its end is not known as such, while it is the separation between one man and another which makes civil society what it is. § 264 Mind is the nature of human beings en masse and their nature is therefore twofold: (i) at one extreme, explicit individuality of consciousness and will, and (ii) at the other extreme, universality which knows and wills what is substantive. Hence they attain their right in both these respects only in so far as both their private personality and its substantive basis are actualised. Now in the family and civil society they acquire their right in the first of these respects directly and in the second indirectly, in that (i) they find their substantive self-consciousness in social institutions which are the universal implicit in their particular interests, and (ii) the Corporation supplies them with an occupation and an activity directed on a universal end. § 265 These institutions are the components of the constitution (i.e. of rationality developed and actualised) in the sphere of particularity. They are, therefore, the firm foundation not only of the state but also of the citizen’s trust in it and sentiment towards it. They are the pillars of public freedom since in them particular freedom is realised and rational, and therefore there is implicitly present even in them the union of freedom and necessity. Addition: As was remarked earlier on, the sanctity of marriage and the institutions in which civil society is an appearance of ethical life constitute the stability of the whole, i.e. stability is secured when universal affairs are the affairs of each member in his particular capacity. What is of the utmost importance is that the law of reason should be shot through and through by the law of particular freedom, and that my particular end should become identified with the universal end, or otherwise the state is left in the air. The state is actual only when its members have a feeling of their own self-hood and it is stable only when public and private ends are identical. It has often been said that the end of the state is the happiness of the citizens. That imperfectly true. If all is not well with them, if their subjective aims are not satisfied, if they do not find that the state as such is the means to their satisfaction, then the footing of the state itself is insecure. § 266 But mind is objective and actual to itself not merely as this necessity and as a realm of appearance, but also as the ideality and the heart of this necessity. Only in this way is this substantive universality aware of itself as its own object and end, with the result that the necessity appears to itself in the shape of freedom as well.

§ 267 This necessity in ideality is the inner self-development of the Idea. As the substance of the individual subject, it is his political sentiment [patriotism]; in distinction therefrom, as the substance of the objective world, it is the organism of the state, i.e. it is the strictly political state and its constitution. Addition: The unity of the freedom which knows and wills itself is present first of all as necessity. Here substance is present as the subjective existence of individuals. Necessity’s other mode of being, however, is the organism, i.e. mind is a process internal to itself, it articulates itself within, posits differences in itself, and thereby completes the cycle of its life. § 268 The political sentiment, patriotism pure and simple, is assured conviction with truth as its basis — mere subjective assurance is not the outcome of truth but is only opinion — and a volition which has become habitual. In this sense it is simply a product of the institutions subsisting in the state, since rationality is actually present in the state, while action in conformity with these institutions gives rationality its practical proof. This sentiment is, in general, trust (which may pass over into a greater or lesser degree of educated insight), or the consciousness that my interest, both substantive and particular, is contained and preserved in another’s (i.e. in the state’s) interest and end, i.e. in the other’s relation to me as an individual. In this way, this very other is immediately not an other in my eyes, and in being conscious of this fact, I am free.

Remark: Patriotism is often understood to mean only a readiness for exceptional sacrifices and actions. Essentially, however, it is the sentiment which, in the relationships of our daily life and under ordinary conditions, habitually recognises that the community is one’s substantive groundwork and end. It is out of this consciousness, which during life’s daily round stands the test in all circumstances, that there subsequently also arises the readiness for extraordinary exertions. But since men would often rather be magnanimous than law-abiding, they readily persuade themselves that they possess this exceptional patriotism in order to be sparing in the expression of a genuine patriotic sentiment or to excuse their lack of it. If again this genuine patriotism is looked upon as that which may begin of itself and arise from subjective ideas and thoughts, it is being confused with opinion, because so regarded patriotism is deprived of its true ground, objective reality.

Addition: Immature minds delight in argumentation and fault-finding, because it is easy enough to find fault, though hard to see the good and its inner necessity. The learner always begins by finding fault, but the scholar sees the positive merit in everything. In religion, this or that is quickly dismissed as superstitious, but it is infinitely harder to apprehend the truth underlying the superstition. Hence men’s apparent sentiment towards the state is to be distinguished from what they really will; inwardly they really will the thing, but they cling to details and take delight in the vanity of pretending to know better. We are confident that the state must subsist and that in it alone can particular interests be secured. But habit blinds us to that on which our whole existence depends. When we walk the streets at night in safety, it does not strike us that this might be otherwise. This habit of feeling safe has become second nature, and we do not reflect on just how this is due solely to the working of special institutions. Commonplace thinking often has the impression that force holds the state together, but in fact its only bond is the fundamental sense of order which everybody possesses.

§ 269 The patriotic sentiment acquires its specifically determined content from the various members of the organism of the state. This organism is the development of the Idea to its differences and their objective actuality. Hence these different members are the various powers of the state with their functions and spheres of action, by means of which the universal continually engenders itself, and engenders itself in a necessary way because their specific character is fixed by the nature of the concept. Throughout this process the universal maintains its identity, since it is itself the presupposition of its own production. This organism is the constitution of the state. Addition: The state is an organism, i.e. the development of the Idea to the articulation of its differences. Thus these different sides of the state are its various powers with their functions and spheres of action, by means of which the universal continually engenders itself in a necessary way; in this process it maintains its identity since it is presupposed even in its own production. This organism is the constitution of the state; it is produced perpetually by the state, while it is through it that the state maintains itself. If the state and its constitution fall apart, if the various members of the organism free themselves, then the unity produced by the constitution is no longer an accomplished fact. This tallies with the fable about the belly and the other members. The nature of an organism is such that unless each of its parts is brought into identity with the others, unless each of them is prevented from achieving autonomy, the whole must perish. By listing attributes, axioms, &c., no progress can be made in assessing the nature of the state; it must be apprehended as an organism. One might as well try to understand the nature of God by listing his attributes, while the truth is that we must intuit God’s life in that life itself.

§ 270 (1) The abstract actuality or the substantiality of the state consists in the fact that its end is the universal interest as such and the conservation therein of particular interests since the universal interest is the substance of these. (2) But this substantiality of the state is also its necessity, since its substantiality is divided into the distinct spheres of its activity which correspond to the moments of its concept, and these spheres, owing to this substantiality, are thus actually fixed determinate characteristics of the state, i.e. its Powers. (3) But this very substantiality of the state is mind knowing and willing itself after passing through the forming process of education. The state, therefore, knows what it wills and knows it in its universality, i.e. as something thought. Hence it works and acts by reference to consciously adopted ends, known principles, and laws which are not merely implicit but are actually present to consciousness; and further, it acts with precise knowledge of existing conditions and circumstances, inasmuch as its actions have a bearing on these. Remark: This is the place to allude to the relation of the state to religion, because it is often reiterated nowadays that religion is the basis of the state, and because those who make this assertion even have the impertinence to suggest that, once it is made, political science has said its last word. No doctrine is more fitted to produce so much confusion, more fitted – indeed to exalt confusion itself to be the constitution of the state and the proper form of knowledge. In the first place, it may seem suspicious that religion is principally sought and recommended for times of public calamity, disorder, and oppression, and that people are referred to it as a solace in face of wrong or as a hope in compensation for loss. Then further, while the state is mind on earth (der Geist der in der Welt steht), religion may sometimes be looked upon as commanding downright indifference to earthly interests, the march of events, and current affairs, and so to turn men’s attention to religion does not seem to be the way to exalt the interest and business of the state into the fundamental and serious aim of life. On the contrary, this suggestion seems to assert that politics is wholly a matter of caprice and indifference, either because this way of talking merely amounts to saying that it is only the aims of passion and lawless force, &c., which bear sway in the state, or because this recommendation of religion is supposed to be of self-sufficient validity, and religion is to claim to decide the law and administer it. While it might seem a bitter jest to stifle all animus against tyranny by asserting that the oppressed find their consolation in religion, it still must not be forgotten that religion may take a form leading to the harshest bondage in the fetters of superstition and man’s degraded subservience to animals. (The Egyptians and the Hindus, for instance, revere animals as beings higher than themselves.) This phenomenon may at least make it evident that we ought not to speak of religion at all in general terms and that we really need a power to protect us from it in some of its forms and to espouse against them the rights of reason and self-consciousness.

The essence of the relation between religion and the state can be determined, however, only if we recall the concept of religion. The content of religion is absolute truth, and consequently the religious is the most sublime of all dispositions. As intuition, feeling, representative knowledge, its task is concentrated upon God as the unrestricted principle and cause on which everything hangs. It thus involves the demand that everything else shall be seen in this light and depend on it for corroboration, justification, and verification. It is in being thus related to religion that state, laws, and duties all alike acquire for consciousness their supreme confirmation and their supreme obligatoriness, because even the state, laws, and duties are in their actuality something determinate which passes over into a higher sphere and so into that on which it is grounded. It is for this reason that in religion there lies the place where man is always assured of finding a consciousness of the unchangeable, of the highest freedom and satisfaction, even within all the mutability of the world and despite the frustration of his aims and the loss of his interests and possessions. Footnote: Religion, knowledge and science have as their principle a form peculiar to each and different from that of the state. They therefore enter the state partly as mean – means to education and (a higher) mentality – partly in so far as they are in essence ends in themselves, for the reason that they are embodied in existent institutions. In both these respects the principles of the state have, in their application, a bearing on them. A comprehensive, concrete treatise on the state would also have to deal with those spheres of life is well as with art and such things as mere geographical matters, and to consider their place in the state and their bearing on it. In this book, however, it is the principle of the state in its own special sphere which is being fully expounded in accordance with the Ideal, and it is only in passing that reference can be made to the principles of religion, &c., and to the application of the right of the state to them.

Remark: Now if religion is in this way the groundwork which includes the ethical realm in general, and the state’s fundamental nature – the divine will – in particular, it is at the same time only a groundwork; and it is at this point that state and religion begin to diverge. The state is the divine will, in the sense that it is mind present on earth, unfolding itself to be the actual shape and organisation of a world. Those who insist on stopping at the form of religion, as opposed to the state, are acting like those logicians who think they are right if they continually stop at the essence and refuse to advance beyond that abstraction to existence, or like those moralists (see Remark to § 140) who will only good in the abstract and leave it to caprice to decide what is good. Religion is a relation to the Absolute, a relation which takes the form of feeling, representative thinking, faith; and, brought within its all-embracing circumference, everything becomes only accidental and transient. Now if, in relation to the state, we cling to this form of experience and make it the authority for the state and its essential determinant, the state must become a prey to weakness, insecurity, and disorder, because it is an organism in which firmly fixed distinct powers, laws, and institutions have been developed. In contrast with the form of religion, a form which draws a veil over everything determinate, and so comes to be purely subjective, the objective and universal element in the state, i.e. the laws, acquires a negative instead of a stable and authoritative character, and the result is the production of maxims of conduct like the following: ‘To the righteous man no law is given; only be pious, and for the rest, practise what thou wilt; yield to thine own caprice and passion, and if thereby others suffer wrong, commend them to the consolations and hopes of religion, or better still, call them irreligious and condemn them to perdition.’ This negative attitude, however, may not confine itself to an inner disposition and attitude of mind; it may turn instead to the outside world and assert its authority there, and then there is an outbreak of the religious fanaticism which, like fanaticism in politics, discards all government and legal order as barriers cramping the inner life of the heart and incompatible with its infinity, and at the same time proscribes private property, marriage, the ties and work involved in civil society, &c., &c., as degrading to love and the freedom of feeling. But since even then decisions must somehow be made for everyday life and practice, the same doctrine which we had before (see Remark to § 140, where we dealt generally with the subjectivity of the will which knows itself to be absolute) turns up again here, namely that subjective ideas, i.e. opinion and capricious inclination, are to do the deciding.

In contrast with the truth thus veiled behind subjective ideas and feelings, the genuine truth is the prodigious transfer of the inner into the outer, the building of reason into the real world, and this has been the task of the world during the whole course of its history. It is by working at this task that civilised man has actually given reason an embodiment in law and government and achieved consciousness of the fact. Those who ‘seek guidance from the Lord’ and are assured that the whole truth is directly present in their unschooled opinions, fail to apply themselves to the task of exalting their subjectivity to consciousness of the truth and to knowledge of duty and objective right. The only possible fruits of their attitude are folly, abomination, and the demolition of the whole ethical order, and these fruits must inevitably be reaped if the religious disposition holds firmly and exclusively to its intuitive form and so turns against the real world and the truth present in it in the form of the universal, i.e. of the laws. Still, there is no necessity for this disposition to turn outward and actualise itself in this way. With its negative standpoint, it is of course also open to it to remain something inward, to accommodate itself to government and law, and to acquiesce in these with sneers and idle longings, or with a sigh of resignation. It is not strength but weakness which has turned religious feeling nowadays into piety of a polemical kind, whether the polemic be Connected with some genuine need or simply with unsatisfied vanity. Instead of subduing one’s opinions by the labour of study, and subjecting one’s will to discipline and so elevating it to free obedience, the line of least resistance is to renounce knowledge of objective truth. Along this line we may preserve a feeling of abject humility and so also of self-conceit, and claim to have ready to hand in godliness everything requisite for seeing into the heart of law and government, for passing sentence on them, and laying down what their character should and must be; and of course if we take this line, the source of our claims is a pious heart, and they are therefore infallible and unimpeachable, and the upshot is that since we make religion the basis of our intentions and assertions, they cannot be criticised on the score of their shallowness or their immorality.

But if religion be religion of a genuine kind, it does not run counter to the state in a negative or polemical way like the kind just described. It rather recognises the state and upholds it, and furthermore it has a position and an external organisation of its own. The practice of its worship consists in ritual and doctrinal instruction, and for this purpose possessions and property are required, as well as individuals dedicated to the service of the flock. There thus arises a relation between the state and the church. To determine this relation is a simple matter. In the nature of the case, the state discharges a duty by affording every assistance and protection to the church in the furtherance of its religious ends; and, in addition, since religion is an integrating factor in the state, implanting a sense of unity in the depths of men’s minds, the state should even require all its citizens to belong to a church – a church is all that can be said, because since the content of a man’s faith depends on his private ideas, the state cannot interfere with it. A state which is strong because its organisation is mature may be all the more liberal in this matter; it may entirely overlook details of religious practice which affect it, and may even tolerate a sect (though, of course, all depends on its numbers) which on religious grounds declines to recognise even its direct duties to the state. The reason for the state’s liberal attitude here is that it makes over the members of such sects to civil society and its laws, and is content if they fulfil their direct duties to the state passively, for instance by such means as commutation or the performance of a different service.

Footnote: Quakers, Anabaptists, &c., may be said to be active members only of civil society, and they may be regarded as private persons standing in merely private relations to others. Even when this position has been allowed them, they have been exempted from taking the oath. They fulfil their direct duties to the state in a passive way; one of the most important of these duties, the defence of the state against its enemies, they refuse outright to fulfil, and their refusal may perhaps be admitted provided they perform some other service instead. To sects of this kind, the state’s attitude is toleration in the strict sense of the word, because since they decline to recognise their duty to the state, they may not claim the rights of citizenship. On one occasion when the abolition of the slave-trade was being pressed with great vigour in the American Congress, a member from one of the Southern States made the striking retort: ‘Give us our slaves, and you may keep your Quakers.’ Only if the state is otherwise strong can it overlook and suffer such anomalies, because it can then rely principally on the strength of custom and the inner rationality of its institutions to diminish and close the gap between the existence of anomalies and the full assertion of its own strict rights. Thus technically it may have been right to refuse a grant of even civil rights to the Jews on the ground that they should be regarded as belonging not merely to a religious sect but to a foreign race. But the fierce outcry raised against the Jews, from that point of view and others, ignores the fact that they are, above all, men; and manhood, so far from being a mere superficial, abstract quality (see Remark to § 209), is on the contrary itself the basis of the fact that what civil rights rouse in their possessors is the feeling of oneself as counting in civil society as a person with rights, and this feeling of self-hood, infinite and free from all restrictions, is the root from which the desired similarity indisposition and ways of thinking comes into being. To exclude the Jews from rights, on the other hand, would rather be to confirm the isolation with which they have been reproached – a result for which the state refusing them rights would be blamable and reproachable, because by so refusing, it would misunderstood its own basic principle, its nature as an objective and powerful institution (compare the end of the Remark to § 268). The exclusion of the Jews from civil rights may be supposed to be a right of the highest kind and may be demanded on that ground; but experience has shown that so to exclude them is the silliest folly, and the way in which governments now treat them has proved itself to be both prudent and dignified.

Remark: But since the church owns property and carries on besides the practice of worship, and since therefore it must have people in its service, it forsakes the inner for the worldly life and therefore enters the domain of the state, and eo ipso comes under its laws. The oath and ethical ties generally, like the marriage bond, entail that inner permeation and elevation of sentiment which acquires its deepest confirmation through religion. But since ethical ties are in essence ties within the actual rational order, the first thing is to affirm within that order the rights which it involves. Confirmation of these rights by the church is secondary and is only the inward, comparatively abstract, side of the matter. As for the other ways in which an ecclesiastical communion gives expression to itself, so far as doctrine is concerned the inward preponderates over the outward to a greater extent than is the case with acts of worship and other lines of conduct connected with these, in which the legal side at least seems at once to be a matter for the state. (It is true, of course, that churches have managed to exempt their ministers and property from the power and jurisdiction of the state, and they have even arrogated to themselves jurisdiction over laymen as well in matters in which religion co-operates, such as divorce and the taking of the oath, &c.) Public control of actions of this kind is indeterminate in extent, but this is due to the nature of public control itself and obtains similarly in purely civil transactions (see § 234). When individuals, holding religious views in common, form themselves into a church, a Corporation, they fall under the general control and oversight of the higher state officials. Doctrine as such, however, has its domain in conscience and falls within the right of the subjective freedom of selfconsciousness, the sphere of the inner life, which as such is not the domain of the state. Yet the state, too, has a doctrine, since its organisation and whatever rights and constitution are authoritative within it exist essentially in the form of thought as law. And since the state is not a mechanism but the rational life of self-conscious freedom, the system of the ethical world, it follows that an essential moment in the actual state is the mental attitude of the citizens, and so their consciousness of the principles which this attitude implies. On the other hand, the doctrine of the church is not purely and simply an inward concern of conscience. As doctrine it is rather the expression of something, in fact the expression of a subject-matter which is most closely linked, or even directly concerned, with ethical principles and the law of the land. Hence at this point the paths of church and state either coincide or diverge at right angles. The difference of their two domains may be pushed by the church into sheer antagonism since, by regarding itself as enshrining the content of religions content which is absolute – it may claim as its portion mind in general, and so the whole ethical sphere, and conceive the state as a mere mechanical scaffolding for the attainment of external, non-mental, ends. It may take itself to be the Kingdom of God, or at least as the road to it or its vestibule, while it regards the state as the kingdom of this world, i.e. of the transient and the finite. In a word, it may think that it is an end in itself, while the state is a mere means. These claims produce the demand, in connection with doctrinal instruction, that the state should not only allow the church to do as it likes with complete freedom, but that it should pay unconditional respect to the church’s doctrines as doctrines, whatever their character, because their determination is supposed to be the task of the church alone. The church bases this claim on the wide ground that the whole domain of mind (Geist) is its property. But science and all types of knowledge also have a footing in that domain and, like a church, they build themselves into a whole with a guiding principle of its own, and, with even better justification, may regard themselves as occupying the position which the church claims. Hence science also may in the same way demand to be independent of the state, which is then supposed to be a mere means with the task of providing for science as though science were an end in itself.

Further, for determining the relation between church and state, it makes no difference whether the leaders of congregations or individuals ordained to the service of the church feel impelled to withdraw from the state and lead a sort of secluded life of their own, so that only the other church members are subject to the state’s control, or whether they remain within the state except in their capacity as ecclesiastics, a capacity which they take to be but one side of their life. the most striking thing about such a – conception of the church’s relation to the state is that it implies the idea – that the state’s specific function consists in protecting and securing everyone’s life, property, and caprice, in so far as these do not encroach upon the life, property, and caprice of others. The state from this point of view is treated simply as an organisation to satisfy men’s necessities. In this way the element of absolute truth, of mind in its higher development, is placed, as subjective religious feeling or theoretical science, beyond the reach of the state. The state, as the laity pure and simple, is confined to paying its respects to this element and so is entirely deprived of any strictly ethical character. Now it is, of course, a matter of history that in times and under conditions of barbarism, all higher forms of intellectual life had their seat only in the church, while the state was a mere mundane rule of force, caprice, and passion. At such times it was the abstract opposition of state and church which was the main underlying principle of history (see § 359). But it is far too blind and shallow a proceeding to declare that this situation is the one which truly corresponds with the Idea. The development of this Idea has proved this rather to be the truth, that mind, as free and rational, is implicitly ethical, while the Idea in its truth is rationality actualised; and this it is which exists as the state. Further, this Idea has made it no less clearly evident that the ethical truth in it is present to conscious thought as a content worked up into the form of universality, i.e. as law – in short, that the state knows its aims, apprehends and gives practical proof of them with a clear – cut consciousness and in accordance with principles. Now, as I said earlier, religion has the truth as its universal subject-matter, but it possesses it only as a given content which has not been apprehended in its fundamental characteristics as a result of thinking and the use of concepts. Similarly, the relation of the individual to this subject-matter is an obligation grounded on authority, while the ‘witness of his own spirit and heart’, i.e. that wherein the moment of freedom resides, is faith and feeling. It is philosophic insight which sees that while church and state differ in form, they do not stand opposed in content, for truth and rationality are the content of both. Thus when the church begins to teach doctrines (though there are and have been some churches with a ritual only, and others in which ritual is the chief thing, while doctrine and a more educated consciousness are only secondary), and when these doctrines touch on objective principles, on thoughts of the ethical and the rational, ‘then their expression eo ipso brings the church into the domain of the state. In contrast with the church’s faith and authority in matters affecting ethical principles, rightness, laws, institutions, in contrast with the church’s subjective conviction, the state is that which knows. Its principle is such that its content is in essence no longer clothed with the form of feeling and faith but is determinate thought.

If the content of absolute truth appears in the form of religion as a particular content, i.e. as the doctrines peculiar to the church as a religious community, then these doctrines remain out of the reach of the state (in Protestantism they are out of the reach of priests too because, as there is no laity there, so there is no priesthood to be an exclusive depository of church doctrine). Since ethical principles and the organisation of the state in general are drawn into the domain of religion and not only may, but also should, be established by reference thereto, this reference gives religious credentials to the state itself. On the other hand, however, the state retains the right and the form of self-conscious, objective, rationality, the right to make this form count and to maintain it against pretensions springing from truth in a subjective dress, no matter how such truth may girdle itself with certitude and authority. The state is universal in form, a form whose essential principle is thought. This explains why it was in the state that freedom of thought and science had their origin. It was a church, on the other hand, which burnt Giordano Bruno, forced Galileo to recant on his knees his exposition of the Copernican view of the solar system, and so forth. Footnote: ‘When Galileo published the discoveries’ about the phases of Venus, &c., which he had made with the aid of the telescope, ‘he showed that they incontestably proved the motion of the earth. But this idea of the motion of the earth was declared heretical by an assembly of Cardinals, and Galileo, its most famous advocate, was haled before the Inquisition and compelled to recant it, under pain of severe imprisonment. One of the strongest of passions is the love of truth in a man of genius. … Convinced of the motion of the earth as a result of his own observations, Galileo meditated a long while on a new work in which he had resolved to develop all the proofs in its favour. But in order at the same time to escape from the persecution of which otherwise he would inevitably have been the victim, he hit upon the device of expounding them in the form of dialogues between three speakers…. It is obvious enough in them that the advantage lies with the advocate of the Copernican system; but since Galileo did not decide between the speakers, and gave as much weight as possible to the objections raised by the partisans of Ptolemy, he might well have expected to be left to enjoy undisturbed the peace to which his advanced age and his labours had entitled him…. In his seventieth year he was haled once more before the tribunal of the Inquisition…. He was imprisoned and required to recant his opinions a second time under threat of the penalty fixed for a relapse into heresy. … He was made to sign an abjuration in the following terms: “I, Galileo, appearing in person before the court in my seventieth year, kneeling, and with my eyes on the holy Gospels which I hold in my hands, abjure, damn, and execrate with my whole heart and true belief the absurd, false, and heretical doctrine of the motion of the earth.. . .” What a spectacle! An aged, venerable man, famous throughout a long life exclusively devoted to the study of nature, abjuring on his knees, against the witness of his own conscience, the truth which he had demonstrated so convincingly! By the judgment of the Inquisition he was condemned to perpetual imprisonment. A year later he was set at liberty through the intercession of the Grand Duke of Florence. . . . He died in 1642. . . . Europe mourned his loss. It had been enlightened by his labours and was exasperated by the judgment passed by a detested tribunal on a man of his greatness.’ (Laplace: Exposition du système du monde, Book V, chap. 4.) Remark: Science too, therefore, has its place on the side of the state since it has one element, its form, in common with the state, and its aim is knowledge, knowledge of objective truth and rationality in terms of thought. Such knowledge may, of course, fall from the heights of science into opinion and deductive argumentation, and, turning its attention to ethical matters and the organisation of the state, set itself against their basic principles. And it may perhaps do this while making for this opining as if it were reason and the right of subjective selfconsciousness – the same pretentious claim as the church makes for its own sphere, the claim, namely, to be free from restraint in its opinions and convictions. This principle of the subjectivity of knowing has been dealt with above (see Remark to § 140) – It is here only necessary to add a note on the twofold attitude of the state to this opining. On the one hand, in so far as opining is mere opining, a purely subjective matter, it is without any genuine inherent force or power, plume itself as it may; and from this point of view the state may be as totally indifferent to it as the painter who sticks to the three primary colours on his palette is indifferent to the academic wisdom which tells him there are seven. On the other hand, however, when this opining of bad principles embodies itself in a general organisation corrosive of the actual order, the state has to set its face against it and protect objective truth and the principles of ethical life (and it must do the same in face of the formulae of unconditioned subjectivity if these have proposed to take the starting point of science as their basis, and turn state educational institutions against the state by encouraging them to make against it claims as pretentious as those of a church); while, vice versa, in face of a church claiming unrestricted and unconditional authority, the state has in general to make good the formal right of self-consciousness to its own insight, its own conviction, and, in short, its own thought of what is to hold good as objective truth. Mention may also be made of the ‘unity of state and church’ - a favourite topic of modern discussion and held up by some as the highest of ideals. While state and church are essentially one in truth of principle and disposition, it is no less essential that, despite this unity, the distinction between their forms of consciousness should be externalised as a distinction between their special modes of existence. This often desired unity of church and state is found under oriental despotisms, but an oriental despotism is not a state, or at any rate not the selfconscious form of state which is alone worthy of mind, the form which is organically developed and where there are rights and a free ethical life.

Further, if the state is to come into existence as the self-knowing ethical actuality of mind, it is essential that its form should be distinct from that of authority and faith. But this distinction emerges only in so far as the church is subjected to inward divisions. It is only thereafter that the state, in contrast with the particular sects, has attained to universality of thought – its formal principle – and is bringing this universality into existence. (In order to understand this, it is necessary to know not only what universality is in itself, but also what its existence is. Hence so far from its being or its having been a misfortune for the state that the church is disunited, it is only as a result of that disunion that the state has been able to reach its appointed end as a self-consciously rational and ethical organisation. Moreover, this disunion is the best piece of good fortune which could have befallen either the church or thought so far as the freedom and rationality of either is concerned). Addition: The state is actual, and its actuality consists in this, that the interest of the whole is realised in and through particular ends. Actuality is always the unity of universal and particular, the universal dismembered in the particulars which seem to be self-subsistent, although they really are upheld and contained only in the whole. Where this unity is not present, a thing is not actual even though it may have acquired existence. A bad state is one which merely exists; a sick body exists too, but it has no genuine reality. A hand which is cut off still looks like a hand, and it exists, but without being actual. Genuine actuality is necessity; what is actual is inherently necessary. Necessity consists in this, that the whole is sundered into the differences of the concept and that this divided whole yields a fixed and permanent determinacy, though one which is not fossilised but perpetually recreates itself in its dissolution. To a mature state thought and consciousness essentially belong. Therefore the state knows what it wills and knows it as something thought. Now since knowing has its seat in the state, the seat of science must be there too and not in the church. Despite this, it is often said nowadays that the state must grow out of religion. The state is mind fully mature and it exhibits its moments in the daylight of consciousness. Now the fact that what is hidden in the Idea steps forth into objective existence gives the state the appearance of something finite, and so the state reveals itself as a domain of worldliness, while religion displays itself as a domain of the infinite. If this be so, the state seems to be the subordinate, and since what is finite cannot stand on its own feet, the state is therefore said to need the church as its basis. As finite, it lacks justification, and it is only through religion that it can become sacrosanct and pertain to the infinite. This handling of the matter, however, is supremely one-sided. Of course the state is essentially worldly and finite; it has particular ends and particular powers; but its worldly character is only one of its aspects, and it is only to an unintelligent superficial glance that it is finite and nothing more. For the state has a life-giving soul, and the soul which animates it is subjectivity, which creates differences and yet at the same time holds them together in unity. In the realm of religion too there are distinctions and limitations. God, it is said, is triune; thus there are three persons whose unity alone is Spirit (Geist). Therefore to apprehend the nature of God concretely is to apprehend it through distinctions alone. Hence in the kingdom of God there are limitations, just as there are in the world, and to hold that mind (Geist) on earth, i.e. the state, is only a finite mind, is a one-sided view, since there is nothing irrational about actuality. Of course a bad state is worldly and finite and nothing else, but the rational state is inherently infinite.

Secondly, it is averred that the state must deny e its justification from religion. In religion, the Idea is mind in the inwardness of the heart, but it is this same Idea which gives itself a worldly form as the state and fashions for itself an embodiment and an actuality in knowing and willing. Now if you say that the state must be grounded on religion, you may mean that it should rest on rationality and arise out of it; but your statement may also be misunderstood to mean that men are most adroitly schooled to obedience if their minds are shackled by a slavish religion. (The Christian religion, however, is the religion of freedom, though it must be admitted that this religion may become changed in character and perverted from freedom to bondage when it is infected with superstition.) Now if you mean that men must have religion so that their minds, already shackled, may the more easily be oppressed by the state, then the purport of your statement is bad. But if you mean that men ought to respect the state, this whole whose limbs they are, then of course the best means of effecting this is to give them philosophical insight into the essence of the state, though, in default of that, a religious frame of mind may lead to the same result. For this reason, the state may have need of religion and faith. But the state remains essentially distinct from religion, since whatever it claims, it claims in the form of a legal duty, and it is a matter of indifference to it in what spirit that duty is performed. The field of religion, on the other hand, is the inner life, and just as the state would jeopardise the right of that life if, like religion, it made claims on it, so also when the church acts like a state and imposes penalties, it degenerates into a religion of tyranny. A third difference which is connected with the foregoing is that the content of religion is and remains veiled, and consequently religion’s place is in the field of the heart, feeling, and representative thinking. In this field everything has the form of subjectivity. The state, on the other hand, actualises itself and gives its specific institutions a stable, objective, existence. Now if religious feeling wished to assert itself in the state in the same way as it is wont to do in its own field, it would overturn the organisation of the state, because the different organs of the state have latitude to pursue their several distinct paths, while in religion everything is always referred back to the whole. If this whole, then, wished to engulf all the concerns of the state, this would be tantamount to fanaticism; the wish to have the whole in every particular could be fulfilled only by the destruction of the particular, and fanaticism is just the refusal to give scope to particular differences. Hence to say: ‘To the pious man no law is given’ is nothing but an expression of this same fanaticism. Once piety usurps the place of the state, it cannot tolerate the determinate but simply shatters it. It is quite consistent with this if piety leaves decisions to conscience, to the inner life, and is not governed by reasons. This inner life does not develop into reasoned argument or give an account of itself. Hence if piety is to pass for the actuality of the state, all laws are cast to the winds and subjective feeling is the legislator. This feeling may be pure caprice, and whether it is or not can only be learnt from its actions. But by becoming actions and precepts, its actions assume the guise of laws, and this is just the very opposite of the subjective feeling with which we started. This feeling has God for its object, and we might make him the determinant of everything. But God is the universal Idea and this feeling can regard him only as the indeterminate, which is too immature to determine what is existent in the state in a developed form. It is precisely the fact that everything in the state is fixed and secure which is the bulwark against caprice and dogmatic opinion. Religion as such, then, ought not to be the governor.

§ 271 The constitution of the state is, in the first place, the organisation of the state and the self-related process of its organic life, a process whereby it differentiates its moments within itself and develops them to self-subsistence. Secondly, the state is an individual, unique and exclusive, and therefore related to others. Thus it turns its differentiating activity outward and accordingly establishes within itself the ideality of its subsisting inward differentiations. Addition: Just as irritability in the living organism is itself from one point of view something inward, something pertaining to the organism as such, so here again the outward reference is an inward tendency. The inner side of the state as such is the civil power, while its outward tendency is the military power, although this has a fixed place inside the state itself. Now to have both these powers in equilibrium constitutes an important factor in the spirit of the state. Sometimes the civil power is wholly effaced and rests entirely on the military power, as was the case, for instance, in the time of the Roman Emperors and the Praetorians. At other times, nowadays for example, the military power is a mere by-product of the civil power once all the citizens are conscriptable.