Enlightened Absolutism and the “Rule of Law”
When we think about absolute monarchs today, we have a tendency to envision them as dictators who did whatever they wished in their realms, with no respect at all for legality. Such a view is very far from reality, as Absolutism, in fact, did not preclude the rule of law (Bernard 1979, 1).
10.4.1 The Enlightened Monarchs and the Law
It is true that the absolute rulers stood, at least theoretically, above the law, which they could create unilaterally. They could not, however, do whatever they wanted about preexisting law, as they were bound to observe fixed and widely recognized rules concerning the manner in which they were expected to rule. To ignore these was not, strictly speaking, illegal, but it was certainly an affront to tradition. This is why the expansion of royal power that Enlightened reformism required was not necessarily incompatible with respect for the law.
In fact, the monarchs themselves did not hesitate to establish limits to prevent the sovereign from undertaking arbitrary actions. A clear example is that of Maria Theresa, who in 1749, as part of an overall reorganization of the Habsburg state administration, created a high court of appeal: the Oberste Justizstelle. This measure was intended not merely to centralize the appeals procedure in criminal cases, but also to establish the firm principle that judges appointed by the sovereign and serving for life would be independent from the general administration.[478]
Concerning the Prussian state, the expansion of absolutism was even clearer. Frederick II was able to consolidate his power from the beginning because Prussia was only a recently-created kingdom (founded in 1701), whose kings were not
obligated by any agreements to consult any feudal assembly whatsoever about governmental affairs.[479] This situation allowed Prussian kings to enjoy ample fiscal resources without having to negotiate with feudal representatives from throughout the realm.[480] This was a uniquely favorable situation compared to what was generally the rule in Latin Christendom, where rulers had widely accepted that few taxes could be imposed without the consent of the assemblies of states.[481] Moreover, the King of Prussia freely appointed and dismissed his ministers, who reported only to him while he, in turn, was answerable only to God (Johnson 1975).
Despite all this, Frederick the Great was no arbitrary ruler. His efforts to improve the law accounted for the greater part of his administrative activity, and he firmly believed that the monarch’s primary function was not to create law, but to protect and support it (Hubatsch 1975, 211).Frederick II exercised his autocratic power in accord with the political ideals of the Enlightenment (Aufklarung),[482] which explains why he enjoyed a rare popularity, unequaled by any other European state of his time (Beck 1997, 34). Thanks to his Enlightenment-based education he believed that he was the agent most qualified to know what his people needed. In fact, in 1739, a year before his accession to the throne, the king himself authored a critique of Machiavelli’s work (Anti-Machiavel: Essay on the Criticism of Machiavelli) which was extensively revised by Voltaire, who the king welcomed on more than one occasion to his palace of Sans-Souci.[483]
Much later Frederick II would write his Essay on the Forms of Government and the Duties of Sovereigns, which he published in 1781 in French. In this work he argued that the prince is to society as the head is to the body, seeing, thinking and acting for the whole community to benefit it (Frederick II 1789, 15).
10.4.2 Frederick II's Sonderweg
It is no wonder, then, that Frederick II made an important contribution to the European public legal tradition, developing in Germany an avant la lettre idea of the “rule of law”.[484] Specifically, he supported the concept of the Rechtsstaat (state of law) as opposed to the Obrigkeitstaat (the authoritarian state) (Van Van Caenegem 2003,136), as he maintained that the king served in a capacity of service to the state, rejecting the old patrimonial conception of the monarchy. In his aforementioned Essay on the Forms of Government, Frederick II held that citizens granted preeminence to one of their equals (their king) with an exclusive view to the services which they expected of him.
Nevertheless, he believed in equality before the law[485] and argued that princes, sovereigns and kings were not entrusted with the highest authority to bask in impunity, depravity and luxury.[486] Rather, for Frederick II the monarch was subject to the law and obligated to respect it. Hence, from this point of view he was not an “absolute” monarch in the original sense of the term of someone who was above the law (legibus solutus).[487] At the same time Frederick II rejected falling into the excesses of legislative dictatorship like the one that which the French Revolution would spawn, therefore advocating a “middle path” (Sonderweg) between autocratic monarchy and radical, Jacobin republicanism, holding that in no case should the assemblies’ power exceed that of the sovereign.[488]This preeminence of what today we would call the Executive left a very strong mark on Prussia. Hence, after the Revolution of 1848, though Prussia became a constitutional regime (in 1850), it did not become a parliamentary one. The monarchical model of the state became more pronounced upon the proclamation of the II Reich in 1871. Thus, in cases of conflict with the legislature the monarch could rule via ordinance—something which Bismarck often, in fact, did when he headed up the Prussian Empire (1862-1890) according to the idea that Recht (law) had become a formal attribute of the state (Crosby 2008, 7). Prussia would not subscribe to a “parliamentary system” until as late as the Weimar Republic (1919-1933).
10.4.3 The Rationalization of the Legal System
Finally, the speed at which the rule of law spread was facilitated by the fact that enlightened monarchs sought to streamline and unify their realms’ legal systems. It is important to remember that in the eighteenth century monarchies ruled over patchworks of territories that possessed traditional laws and institutions that were usually left partly or wholly intact when they were incorporated into larger states. This explains why in a single kingdom there coexisted a great variety of different laws and jurisdictions, a phenomenon that was an eternal source of confusion and expense (Gagliardo 1968, 51). Enlightened monarchs did their best to unify and simplify the body of laws and judicial systems in their realms. To do so, they decided that old customs and books of authority had to be replaced by new law, freely conceived by modern man, based on reason and fee of obscurantism. The enlightened legal system was to be clear and certain, comprehensible to the people, whom it was meant to serve. The result was the first national Enlightenment-era codes, based on natural law and conceived of as a body of basic principles from which positive law ought to be directly derived, the best example being the Prussian Allgemeine Landrecht of 1794 (Van Caenegem 1994, 123-124).
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