第 24 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  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 judgements 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
  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 rege male
  informato ad regem melius informandum)。
  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 accordance with the laws of freedom。 In their union the
  welfare of the state is realized。 Salus reipublicae 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。 But 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。
  *'〃The health of the state is the highest law。〃'
  Constitutional and Juridical Consequences arising from
  the Nature of the Civil Union。
  A。 Right of the Supreme Power; Treason; Dethronement;
  Revolution; Reform。
  The origin of the supreme power is practically inscrutable by the
  people who are placed under its authority。 In other words; the subject
  need not reason too curiously in regard to its origin in the practical
  relation; as if the right of the obedience due to it were to be
  doubted (jus controversum)。 For as the people; in order to be able
  to abjudicate with a title of right regarding the supreme power in the
  state; must be regarded as already united under one common legislative
  will; it cannot judge otherwise than as the present supreme head of
  the state (summus imperans) wills。 The question has been raised as
  to whether an actual contract of subjection (pactum subjectionis
  civilis) originally preceded the civil government as a fact; or
  whether the power arose first; and the law only followed afterwards;
  or may have followed in this order。 But such questions; as regards the
  people already actually living under the civil law; are either
  entirely aimless; or even fraught with subtle danger to the state。
  For; should the subject; after having dug down to the ultimate
  origin of the state; rise in opposition to the present ruling
  authority; he would expose himself as a citizen; according to the
  law and with full right; to be punished; destroyed; or outlawed。 A law
  which is so holy and inviolable that it is practically a crime even to
  cast doubt upon it; or to suspend its operation for a moment; is
  represented of itself as necessarily derived from some supreme;
  unblameable lawgiver。 And this is the meaning of the maxim; 〃All
  authority is from God〃; which proposition does not express the
  historical foundation of the civil constitution; but an ideal
  principle of the practical reason。 It may be otherwise rendered
  thus: 〃It is a duty to obey the law of the existing legislative power;
  be its origin what it may。〃
  Hence it follows; that the supreme power in the state has only
  rights; and no (compulsory) duties towards the subject。 Further; if
  the ruler or regent; as the organ of the supreme power; proceeds in
  violation of the laws; as in imposing taxes; recruiting soldiers;
  and so on; contrary to the law of equality in the distribution of
  the political burdens; the subject may oppose complaints and
  objections (gravamina) to this injustice; but not active resistance。
  There cannot even be an Article contained in the political
  constitution that would make it possible for a power in the state;
  in case of the transgression of the constitutional laws by the supreme
  authority; to resist or even to restrict it in so doing。 For;
  whoever would restrict the supreme power of the state must have
  more; or at least equal; power as compared with the power that is so
  restricted; and if competent to command the subjects to resist; such a
  one would also have to be able to protect them; and if he is to be
  considered capable of judging what is right in every case; he may also
  publicly order resistance。 But such a one; and not the actual
  authority; would then be the supreme power; which is contradictory。
  The supreme sovereign power; then; in proceeding by a minister who
  is at the same time the ruler of the state; consequently becomes
  despotic; and the expedient of giving the people to imagine… when they
  have properly only legislative influence… that they act by their
  deputies by way of limiting the sovereign authority; cannot so mask
  and disguise the actual despotism of such a government that it will
  not appear in the measures and means adopted by the minister to
  carry out his function。 The people; while represented by their
  deputies in parliament; under such conditions; may have in these
  warrantors of their freedom and rights; persons who are keenly
  interested on their own account and their families; and who look to
  such a minister for the benefit of his influence in the army; navy;
  and public offices。 And hence; instead of offering resistance to the
  undue pretensions of the government… whose public declarations ought
  to carry a prior accord on the part of the people; which; however;
  cannot be allowed in peace; they are rather always ready to play
  into the hands of the government。 Hence the so…called limited
  political constitution; as a constitution of the internal rights of
  the state; is an unreality; and instead of being consistent with
  right; it is only a principle of expediency。 And its aim is not so
  much to throw all possible obstacles in the way of a powerful violator
  of popular rights by his arbitrary influence upon the government; as
  rather to cloak it over under the illusion of a right of opposition
  conceded to the people。
  Resistance on the part of the people to the supreme legislative
  power of the state is in no case legitimate; for it is only by
  submission to the universal legislative will; that a condition of
  law and order is possible。 Hence there is no right of sedition; and
  still less of rebellion; belonging to the people。 And least of all;
  when the supreme power is embodied in an individual monarch; is
  there any justification; under the pretext of his abuse of power;
  for seizing his person or taking away his life (monarchomachismus
  sub specie tyrannicidii)。 The slightest attempt of this kind is high
  treason (proditio eminens); and a traitor of this sort who aims at the
  overthrow of his country may be punished; as a political parricide;
  even with death。 It is the duty of the