solely by natural law. Government, on the other hand, is solely a product
of positive law. A nation is all that it can be simply by virtue of being
what it is. It cannot decide by an act of its will to give itself any more or
less rights than those that it actually has. In the very first epoch it had all
the rights of a nation. In the second epoch, it exercised them itself. In the
third, it turned all the rights needed for the preservation and the good
order of the community into rights exercised by its representatives. If you
stray from this sequence of simple ideas, you will simply stumble from
one absurdity to the next.
Government can exercise real power only insofar as it is constitutional.
It is legal only insofar as it is faithful to the laws imposed upon it. The national
will, on the other hand, simply needs the reality of its existence to
be legal. It is the origin of all legality.
Not only is a nation not subject to a constitution, it cannot and should
not be—which amounts to repeating the point that it is not subject to a
constitution.
It cannot be subject. From who, in effect, could it have received a positive
form? Is there any antecedent authority able to have told a multitude
of individuals, “I have united you under this set of laws, and you will
form a nation under the conditions which I have laid down”? Here we
are not dealing with brigandage or domination but with a legitimate association,
one that is voluntary and free.
Can it be said that a nation could, by an initial act of will that is truly
free of every prescribed form, undertake to will in future only in a determinate
manner? In the first place, a nation cannot alienate or prohibit its
right to will and, whatever its will might be, it cannot lose its right to
change it as soon as its interests require it. In the second place, to whom
might a nation thus offer to bind itself? I can see how it can oblige its
members as well as those it has mandated and everything connected to it.
But can it in any sense impose duties on itself? What is a contract with
oneself? Since both sides are the work of the same will, it is easy to see
that it can always withdraw from the so-called engagement.
But even if it could, a nation should not subject itself to the restrictions
of a positive form. To do so would expose it to the irretrievable loss of its
liberty. Tyranny needs no more than a single moment of success to bind
a people, through devotion to a constitution, to forms which make it impossible
for them to express their will freely and, as a result, to break the
chains of despotism. Every nation on earth has to be taken as if it is like
an isolated individual outside all social ties or, as it is said, in a state of nature.
The exercise of their will is free and independent of all civil forms.
Since they exist only in the natural order, their will needs only to have
the natural character of a will to produce all its effects. However a nation