The Philosophy of Law: Public Right, § 49: Distinct Functions of the Three Powers; Autonomy of the State
1. The Executive Power belongs to the Governor or regent of the State, whether it assumes the form of a Moral or Individual Person, as the King or Prince (rex, princcps). This Executive Authority, as the Supreme Agent of the State, appoints the Magistrates, and prescribes the Rules to the people, in accordance with which individuals may acquire anything or maintain what is their own conformably to the Law, each case being brought under its application. Regarded as a Moral Person, this Executive Authority constitutes the Govern ment. The Orders issued by the Government to the People and the Magistrates as well as to the higher Ministerial Administrators of the State (gubcrnatio), are Rescripts or Decrees, and not Laws; for they terminate in the decision of particular cases, and are given forth as unchangeable. A Government acting as an Executive, and at the same time laying down the Law as the Legislative Power, would be a Despotic Government, and would have to be contradistinguished from a patriotic Government. A patriotic Government, again, is to be distinguished from a paternal Government (regimen paternale) which is the most despotic Government of all, the Citizens being dealt with by it as mere children. A patriotic Government, however, is one in which the State, while dealing with the Subjects as if they were Members of a Family, still treats them likewise as Citizens, and according to Laws that recognise their independence, each individual possessing himself and not being dcpen-(lent on the absolute Will of another beside him or above him.
2. The Legislative Authority ought not at the same time to be the Executive or Governor; for the Governor, as Administrator, should stand under the authority of the Law, and is bound by it under the supreme control of the Legislator. The Legislative Authority may therefore deprive the Governor of his power, depose him, or reform his administration, but not punish him. This is the proper and only meaning of the common saying in England, ‘The King—as the Supreme Executive Power—can do no wrong.’ For any such application of Punishment would necessarily be an act of that very Executive Power to which the supreme Right to compel according to Law pertains, and which would itself be thus subjected to coercion; which is self-contradictory.
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 judgments 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—by 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 reye male wfonnato ad reycm meHu infonnandum).
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 accord ance with the Laws of Freedom. In their union the Welfare of the State is realized. Salus reipuUiccc 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. Hut 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.