Johann Gottlieb Fichte

“ Our first a priori established rule in considering the constitution was this: That the power of a commonwealth must be transferred, and can not remain in the hands of the people. The question here arises: Shall it be transferred to one or to many; or shall the state, in regard to the persons who constitute its government, be a monocracy or an aristocracy? For a pure democracy is not a legal form of government. ”

“ Will not the government, having all power in its hands, try to suppress the Ephorate at the very start? The Roman patricians will bear witness; for they killed the tribunes of the people. The Ephores once killed, government would find arguments and false charges enough to justify its conduct. Moreover, it has certainly been proved, that the decision of the people is always formaliter law, because there is no higher judge. But how materialiter? Is not more confidence to be placed in a number of the wisest of the people than in a majority which has been gathered together, God only knows how? ”

“ Such a form of government, the democratic [1] form of government, in the real signification of the word, is the unsafest which is possible, since each citizen has constantly to fear not only the attacks of other citizens, but also the blind rage of a maddened mob, which will carry out injustice under the name of law.
Our problem, therefore, has not been solved; and the condition of men is as unsafe as ever. The true ground of this unsafety is, that the people can not be at the same time both judge and a party in the administration of the law. ”

“ Utterly useless and only seemingly possible is the separation of the judicial from the executive power, using the latter word in its more limited sense. For if the executive power has no veto upon the judicial power, then it is the unlimited power of the judiciary itself, separated into two persons; [4] but of which two persons only one has a will, the other being merely a physical power directed by another will. But if the executive power has a veto, then it is itself the highest judicial power, and both powers are again one and the same. ”

“ Hence, the government officials always remain their own judges, because the realizing of a judicial power to judge them depends upon themselves; and thus the form of government remains, after all, a despotism.
In short, since the people, as one body, can call itself together in convention only through itself, and since the people can not be one body until they have been thus called together, its calling together is impossible. ”

“ In other words, the people would be their own judge of the administration of the law. Now, so long as insecurity had not become general, the people would probably allow many violations of the law to pass unpunished. Suddenly, when matters would grow intolerable, the people, in order to remedy past neglect, would pounce with unjust and passionate severity upon the criminals, whom previous laxity had rendered bolder, and who had been led to expect the same laxity in their own cases, but whose misfortune had brought them into the clutches of the law at the very epoch of the awaking of the people. ”

“ It has further been shown, that only the people can judge the administrators of the public power. But the difficulty is this: where and what is the people? Is it any thing more than a mere conception, and if any thing more, how is it to be realized?
Before the tribunal of the public power or state government, all the members of the state are only private persons and not a people; each person is always subject to the government. Each will is considered by the government as only a private will, and the government considers itself the sole expression of the common will. ”

“ It is, for instance, a priori clear that no checking power can be efficient if a monarch remains the permanent executive; or if there is not a power to punish his unlawful actions, by depriving him of his executive office. It is equally clear that an hereditary aristocracy does not permit of an efficient checking system, and that hence it is an unlawful form of government; for there is no power sufficient to prevent their abuse of power; or, if there is, then the aristocracy is not hereditary and exclusive possessor of certain rights. ”

“ For our established conception of a constitution solves only the problem of pure reason: How can the Conception of Rights be realized in the sensuous world? If that constitution is, therefore, to be further determined, this can be done only by empirical facts. ”

“ Firstly, the people may rise up unanimously of their own accord and sit in judgment upon both Ephorate and government; for instance, when acts of injustice are too horribly apparent. In this case, the uprising is lawful both in form and in substance; for until insecurity and maladministration of the law oppress every citizen, each one takes care only of himself, and tries to get along as best he may. No people have ever uprise nor ever will uprise as one man, until injustice has become too intolerable. ”

“ A good civil law and a strict execution thereof utterly cancel the application of the criminal law. Moreover, who will dare to commit a crime if he knows surely that he will be detected and punished? A half a century of such a state of things, and the conceptions of crimes will have vanished from the consciousness of the happy people who are governed according to such laws.
If the executive power has less to do, the possibility of its being unjust is lessened in an equal degree. ”

“ THROUGH the state organization the common will has manifested itself, and become the law of all. But it has not yet been established actually, nor has the power to protect all the individuals of the state been, as yet, conferred upon it. The common will is realized in the state organization as mere will; but not as power to maintain itself, not as a government. ”

“ For either that government is conscious of its just administration, and in that case such a proposition for a convention would be utterly opposed to the common desire that no unnecessary disturbance of private business and of the administration of the law shall be tolerated, or it is conscious of its injustice; in which case it is not to be presumed that it will give up the power which it still holds in its hands, and will itself call together its judge. ”

“ If, however, an unforeseen question should come up, of vast importance for the whole people, for which the constitution contained no provision, it is difficult to see how any other than an absolute majority could decide it. It will not do to say that the minority must submit. The minority have their rights under the original agreement, to take away the least of which involves an utter overthrow of all law; no matter how large the majority by which it is done.—Translator's remark.↑ The excellent arrangement of our checking power makes such a union next to impossible. ”

“ Hence, the expedient of calling the people together through the Ephorate, or of revolutions, will be only a substitution of one evil for another and greater one, until a complete change has been effected in the human race. A greater evil: for the principles of government, which are always conformable to the character of the age, will not change, and the regent of a people which has revolutionized will try all the more to root his power firmer, in order to prevent the recurrence of a revolution. ”

“ Now, until the people have attained this high degree of culture, it is better that they should, in their constitution, delegate their right of election (of franchise) —which, of course, they can thus delegate away only by absolute unanimity—and thus introduce a fixed succession of rulers. In a republic, the rulers may be allowed to fill vacancies in their own body; for if the Ephorate is strong enough, they will take good care to make the best selections. In a monocracy, only the people, it would seem, could elect their ruler ”

“ The individuals of the commonwealth, as physical persons in the sensuous world, necessarily are themselves possessed of power. Until some one transgresses the law, his will must be assumed to be in harmony with the common will, and hence his power is part of the common power. Thus each one, even if he has the desire to transgress the law, must always fear the power of all others, and all others must constantly fear his power ”

“ If the people disregard their call, this disregarding proves either that oppression and public insecurity have not yet become general enough, or that they do not exist; or secondly, that the people have not yet awakened to a desire to maintain their freedom and to a knowledge of their rights; that they are not yet fit to decide upon the great law dispute brought before them, and hence that they ought not to have been called together. ”

“ But as the people increase and new branches of business are created—of course, none must be created without the consent of the state—the laws also must change and be made to conform to the changed people.
The whole described mechanism is requisite for the realization of a lawful relation between men; but it is not at all necessary that all these springs and wheels are always externally and visibly working. On the contrary, the better a state is organized the less it will be perceived, because its internal weight and quiet power cancel in advance all necessity for its exercise. ”

“ It is a very true principle, that the government officials should be made responsible to each citizen, and it would be well if such a responsibility could be realized in the sensuous world. It is also clear, that no man ought to be a member of the government whose understanding of the law is considered insufficient by the Ephorate or by the people themselves. But so far as the practicability of such a checking power is concerned, I must now, after mature consideration, decide against it. ”

“ The more rational citizens, if the first is the case, will try to convince them; and if they can not be convinced, they will make themselves very suspect of being partial. But if the minority can not at all agree with the vote of the majority, then they are certainly not obliged to make their safety dependent upon a law which they do not recognize as just; but neither will they desire to live among men who have adopted such a law, and hence the only course open to them is to emigrate from the state. ”

“ Why should the state or the opposite party in a trial be compelled to accept such a statement on oath as absolute fact, and why should the judge be compelled to base his decision upon it, when the whole government is based, not upon trust, but upon distrust?
Under the second presupposition, there arises this same question, and, moreover, the following higher question: What is there supposed to be in an oath calculated to restrain a man, who will publicly assert a falsehood, from making a false assertion under oath? ”

“ Those who have once accepted an office under the constitution, can not again resign it without the consent of the people, since such resignation would perhaps interrupt the rule of the law, or make it impossible for a while, if no one could be found to take their place. On the other hand, the people can not take the office away from them ”

“ Each one must become convinced that the subjection and unlawful treatment of one member of the state will infallibly result in his own subjection and unlawful treatment.
Such a conviction can be produced only by a law. The unjust violence against an individual must, therefore, become legalized by its having occurred in one case. Because something has been allowed to occur once, each citizen must thereafter have a perfect right to do the same. In the words of a previously-used formula: Each deed must necessarily become law; if it does, then every law is sure to become a deed. ”

“ Each individual must declare that he is desirous of entering with all the others into a commonwealth for the maintenance of the law.
In electing magistrates, the matter already assumes a different shape. True, the minority is not compelled to submit to the majority; but being the weaker party, the minority may be compelled to leave the country within the limits of which the majority conclude to realize their constitution. If the minority does not choose to do so—as is most likely—it will have to indorse the action of the majority. ”