The Philosophy of Law: Public Right, § 52: Historical Origin and Changes; A Pure Republic; Representative Government
It is vain to inquire into the historical Origin of the political Mechanism; for it is no longer possible to discover historically the point of time at which Civil Society took its beginning. Savages do not draw up ;i documentary Record of their having submitted themselves to Law; and it may be inferred from the nature of uncivilised men that they must have set out from a state of violence. To prosecute such an inquiry in the intention of finding a pretext for altering the existing Constitution by violence, is no less than penal. For such a mode of alteration would amount to a Revolution, that could only be carried out by an Insurrection of the People, and not by constitutional modes of Legislation. But Insurrection against an already existing Constitution, is an overthrow of all civil and juridical relations, and of IJiglit generally; and hence it is not a mere alteration of the Civil Constitution, but a dissolution of it. It would thus form a mode of transition to a better Constitution by Palingenesis and not by mere Metamorphosis; and it would require a new Social Contract, upon which the former Original Contract, as then annulled, would have no influence.
It must, however, be possible for the Sovereign to change the existing Constitution, if it is not actually consistent with the Idea of the Original Contract. In doing so it is essential to give existence to that form of Government which will properly constitute the People into a State. Such a change cannot be made by the State deliberately altering its Constitution from one of the three Forms to one of the other two.—For example, political changes should not be carried out by the Aristocrats combining to subject themselves to an Autocracy, or resolving to fuse all into a Democracy, or conversely; as if it depended on the arbitrary choice and liking of the Sovereign what Constitution he may impose on the People. For, even if as Sovereign he resolved to alter the Constitution into a Democracy, he might be doing Wrong to the People, because they might hold such a Constitution in abhorrence, and regard either of the other two as more suitable to them in the circumstances.
The Forms of the State are only the letter (littera) of the original Constitution in the Civil Union; and they may therefore remain so long as they are considered, from ancient and long habit (and therefore only subjectively), to be necessary to the machinery of the political Constitution. But the spirit of that original Contract (anima pacti originarii) contains and imposes the obligation on the constituting Power to make the mode of the Government conformable to its Idea; and, if this cannot be effected at once, to change it gradually and continuously till it harmonize in its working with the only rightful Constitution, which is that of a Pure Republic. Thus the old empirical and statutory Forms, which serve only to effect the political subjection of the People, will be resolved into the original and rational Forms which alone take Freedom ns their principle, and even as the condition of all compulsion and constraint. Compulsion is in fact requisite for the realization of a juridical Constitution, according to the proper idea of the State; and it will lead at last to the realization of that Idea, even according to the letter. This is the only enduring political Constitution, as in it the LAW is itself Sovereign, and is no longer attached to a particular person. This is the ultimate End of all Public Right, and the state in which every citizen can have what is his own peremptorily assigned to him. But so long as the Form of the State has to be represented, according to the Letter, by many different Moral Persons invested with the Supreme Power, there can only be a provisory internal Right, and not an absolutely juridical state of Civil Society.
Every true Republic is and can only be constituted by a Representative System of the People. Such a Eepre-scntative System is instituted in name of the People, and is constituted by all the Citizens being united together, iii order, by means of their Deputies, to protect and secure their Rights. But as soon as a Supreme Head of the State in person—be it as King, or Nobility, or the whole body of the People in a democratic Union—becomes also representative, the United People then does not merely represent the Sovereignty, but they are them selves sovereign. It is in the People that the Supreme Power originally resides, and it is accordingly from this Power that all the Rights of individual Citizens as mere Subjects, and especially as Officials of the State, must be derived. When the Sovereignty of the People themselves is thus realized, the Republic is established; and it is no longer necessary to give up the reins of Government into the hands of those by whom they have been hitherto held, especially as they might again destroy all the new Institutions by their arbitrary and absolute Will.
It was therefore a great error in judgment on the part of a powerful Ruler in our time, when he tried to extricate himself from the embarrassment arising from great public debts, by transferring this burden to the People, and leaving them to undertake and distribute them among themselves as they might best think fit. It thus became natural that the Legislative Power, not only in respect of the Taxation of the Subjects, but in respect of the Government, should come into the hands of the People. It was requisite that they should be able to prevent the incurring of new Debts by extravagance or war; arid in conse quence, the Supreme Power of the Monarch entirely disappeared, not by being merely suspended, but by passing over in fact to the People, to whose legislative Will the property of every Subject thus became subjected. Nor can it be said that a tacit and yet obligatory promise must be assumed as having, under such circumstances, been given by the National Assembly, not to constitute themselves into a Sovereignty, but only to administer the affairs of the Sovereign for the time, and after this was done to deliver the reins of the Government again into the Monarch’s hands. Such a supposed contract would be null and void. The Right of the Supreme Legis lation in the Commonwealth is not an alienable Right, but is the most personal of all Rights. Who ever possesses it, can only dispose by the collective Will of the People, in respect of the People; he cannot dispose in respect of the Collective Will itself, which is the ultimate foundation of all public Contracts. A Contract, by which the People would be bound to give back their authority again, would not be consistent with their position as a Legislative Power, and yet it would be made binding upon the People; which, on the principle that ‘No one can serve two Masters,’ is a contradiction.