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the science of right-第35章

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profess; or to decree that a certain faith shall be unalterably

held; and that the church may not reform itself。 For in doing so;

the supreme power would be mixing itself up in a scholastic wrangle;

on a footing of equality with its subjects; the monarch would be

making himself a priest; and the churchmen might even reproach the

supreme power with understanding nothing about matters of faith。

Especially would this hold in respect of any prohibition of internal

reform in the church; for what the people as a whole cannot

determine upon for themselves cannot be determined for the people by

the legislator。 But no people can ever rationally determine that

they will never advance farther in their insight into matters of

faith; or resolve that they will never reform the institutions of

the church; because this would be opposed to the humanity in their own

persons and to their highest rights。 And therefore the supreme power

cannot of itself resolve and decree in these matters for the people。

As regards the cost of maintaining the ecclesiastical establishment;

for similar reasons this must be derived not from the public funds

of the state; but from the section of the people who profess the

particular faith of the church; and thus only ought it to fall as a

burden on the community。



  D。 The Right of Assigning Offices and Dignities in the State。



  The right of the supreme authority in the state also includes:

  1。 The distribution of offices; as public and paid employments;

  2。 The conferring of dignities; as unpaid distinctions of rank;

founded merely on honour; but establishing a gradation of higher and

lower orders in the political scale; the latter; although free in

themselves; being under obligation determined by the public law to

obey the former so far as they are also entitled to command;

  3。 Besides these relatively beneficent rights; the supreme power

in the state is also invested with the right of administering

punishment。

  As regards civil offices; the question arises as to whether the

sovereign has the right; after bestowing an office on an individual;

to take it again away at his mere pleasure; without any crime having

been committed by the holder of the office。 I say; 〃No。〃 For what

the united will of the people would never resolve; regarding their

civil officers; cannot (constitutionally) be determined by the

sovereign regarding them。 The people have to bear the cost incurred by

the appointment of an official; and undoubtedly it must be their

will that any one in office should be completely competent for its

duties。 But such competency can only be acquired by a long preparation

and training; and this process would necessarily occupy the time

that would be required for acquiring the means of support by a

different occupation。 Arbitrary and frequent changes would

therefore; as a rule; have the effect of filling offices with

functionaries who have not acquired the skill required for their

duties; and whose judgements had not attained maturity by practice。

All this is contrary to the purpose of the state。 And besides it is

requisite in the interest of the people that it should be possible for

every individual to rise from a lower office to the higher offices; as

these latter would otherwise fall into incompetent hands; and that

competent officials generally should have some guarantee of

life…long provision。

  Civil dignities include not only such as are connected with a public

office; but also those which make the possessors of them; without

any accompanying services to the state; members of a higher class or

rank。 The latter constitute the nobility; whose members are

distinguished from the common citizens who form the mass of the

people。 The rank of the nobility is inherited by male descendants; and

these again communicate it to wives who are not nobly born。 Female

descendants of noble families; however; do not communicate their

rank to husbands who are not of noble birth; but they descend

themselves into the common civil status of the people。 This being

so; the question then emerges as to whether the sovereign has the

right to found a hereditary rank and class; intermediate between

himself and the other citizens? The import of this question does not

turn on whether it is conformable to the prudence of the sovereign;

from regard to his own and the people's interests; to have such an

institution; but whether it is in accordance with the right of the

people that they should have a class of persons above them; who; while

being subjects like themselves; are yet born as their commanders; or

at least as privileged superiors? The answer to this question; as in

previous instances; is to be derived from the principle that 〃what the

people; as constituting the whole mass of the subjects; could not

determine regarding themselves and their associated citizens; cannot

be constitutionally determined by the sovereign regarding the people。〃

Now a hereditary nobility is a rank which takes precedence of merit

and is hoped for without any good reason… a thing of the imagination

without genuine reality。 For if an ancestor had merit; he could not

transmit it to his posterity; but they must always acquire it for

themselves。 Nature has in fact not so arranged that the talent and

will which give rise to merit in the state; are hereditary。 And

because it cannot be supposed of any individual that he will throw

away his freedom; it is impossible that the common will of all the

people should agree to such a groundless prerogative; and hence the

sovereign cannot make it valid。 It may happen; however; that such an

anomaly as that of subjects who would be more than citizens; in the

manner of born officials; or hereditary professors; has slipped into

the mechanism of government in olden times; as in the case of the

feudal system; which was almost entirely organized with reference to

war。 Under such circumstances; the state cannot deal otherwise with

this error of a wrongly instituted rank in its midst; than by the

remedy of a gradual extinction through hereditary positions being left

unfilled as they fall vacant。 The state has therefore the right

provisorily to let a dignity in title continue; until the public

opinion matures on the subject。 And this will thus pass from the

threefold division into sovereign; nobles; and people; to the

twofold and only natural division into sovereign and people。

  No individual in the state can indeed be entirely without dignity;

for he has at least that of being a citizen; except when he has lost

his civil status by a crime。 As a criminal he is still maintained in

life; but he is made the mere instrument of the will of another;

whether it be the state or a particular citizen。 In the latter

position; in which he could only be placed by a juridical judgement;

he would practically become a slave; and would belong as property

(dominium) to another; who would be not merely his master (herus)

but his owner (d
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