From Territorial to Absolute Monarchy
9.1.1 The Modern Age and the Triumph of Royal Absolutism
For some historians, the Middle Ages came to a close upon the taking of Constantinople by the Ottoman Turks on May 29, 1453.
For others, it ended with the discovery of America on October 12, 1492. In any case, the period that follows directly precedes our own times and has traditionally been known as the Early Modern Period,[346] spanning the sixteenth and seventeenth centuries. During this stage, the major development in terms of the history of the state, was the spectacular growth in the power of kings, who consolidated a new model of political organization termed absolute monarchy, whose paradigmatic summation came in the famous phrase attributed to Louis XIV: “I am the state” (L'Etat c'est moi), conveying the complete identification of the state with the figure of the king.[347]The first consequence was that kings did not recognize any authority superior to their power, considering themselves unbeholden to popes and emperors.
9.1.2 From Christian Universalism to Independent Monarchies
Some medieval jurists had already advanced the proposition that in their kingdoms, kings reigned supreme, that they were “emperors” (Rex in regno suo est imperator) (Post 1953, 296-320). In fact, after the death of Frederic II Hohenstaufen (12201250), emperors would no longer aspire to be the supreme authorities in the West, save perhaps, for the exceptional Charles V (1519-1558). The second step would be independence from the papacy.
Since the late fifth century, the churches had managed to impose their power upon the Germanic kings. Meanwhile, since the time of Charlemagne, the popes had succeeded in establishing themselves as the legitimizers of imperial and royal power across Europe. This “papal theocracy”, however, would collapse in the fourteenth century, firstly because Philip the Fair of France dared to defy Pope Boniface VIII, backed by the representatives of the kingdom, gathered in the Estates General, affirming that anyone who was in regno and de regno, had to accept the king as final and supreme judge (Strayer 1980, 270).
Secondly, this collapse was brought about by the Western Schism, which seriously discredited papal authority. Finally, the Lutheran Reformation dealt a definitive blow to imperial power and the pope’s former authority.A landmark moment arrived in western constitutional history when Frederick III of Saxony granted Martin Luther protection at his Castle of Wartburg, despite the fact that Charles V, in the Edict of Worms (May 25, 1521), had declared Luther a fugitive and a heretic, and had prohibited his works. This pivotal event marked the beginning of what MacCulloch (2004, 119-127) has described as an accidental revolution that transformed law and politics based on Luther’s theory of the two kingdoms.[348] The ensuing Catholic response (Counter-Reformation), advanced by the foundation of the Company of Jesus, or Jesuits (1547), and the convening of the Council of Trent (1545-1563),[349] only served to split Europe, between 1520 and 1648, into two halves which would square off in a series of bloody civil wars. These would include the conflicts which ravaged France in the second half of the sixteenth century,[350] the rebellion of the Netherlands against Phillip II in 1581, and the Thirty Years War (1618-1648), which ended up dividing Europe into two camps: the Protestant north and the Catholic south.[351] The conflict also had momentous consequences in terms of European constitutional history, as it promoted the ascendancy of kingdoms as opposed to the notion of a pan-European political authority, i.e. the Holy Roman Emperor or the pope.[352] After the Peace of Westphalia, Europe fractured into a series of independent states warring with each other to impose their hegemony, a state of affairs which would last all the way down until almost the middle of the twentieth century.[353]
The papacy’s loss of influence was also manifest in England, when Henry VIII (1509-1547) nationalized the Anglican Church through the Act of Supremacy in 1534 (Lehmberg 1970, 202-203), after Clement VII refused to recognize the validity of his divorce from Catherine of Aragon and the legitimacy of his subsequent marriage to Anne Boleyn.
The rift with the papacy prompted the king to adopt anti-ecclesiastical measures such as the dissolution of monasteries and the confiscation of church lands. This policy was reversed by his eldest daughter Mary Tudor,[354] who via a 1555 law, restored Catholicism, declaring it treason to speak out against the Church of Rome. However, her half-sister and successor Elizabeth I (1558-1606), again defied Rome, imposing in 1559 a new Act of Supremacy (Haig 2012, 239-242), a middle way between Roman Catholicism and the strain of Calvinism, which the Puritans wished to establish in the country.[355]However, even on the Catholic side, monarchs did not want the popes to intervene in the affairs of their kingdoms. The symbol of this state of things was the “Sack of Rome” in 1527 by Charles V’s army, which demonstrated that the popes had lost prestige and the capacity to arbitrate between sovereigns (Flemer 2002). Thereafter, popes retreated into the spiritual realm, and were confined, like the Holy Roman emperors, to be sovereigns within the territorial limits of their own domains, especially following the signing of the Peace of Habsburg in 1555 (Cuius regio eius religio), which resulted in the introduction, even in the Catholic states, of the doctrine of the ecclesiastical supremacy of sovereigns (regalism), which entailed a whole series of limitations when it came to applying ecclesiastical law and prerogatives within each kingdom. For example, the establishment of the “placet” (the Spanish pase regio) for the application of ecclesiastical rules (Vazquez Garcia Pefiuela and Morales Payan 2005, 15-35), was an attempt to resolve conflicts between royal and church power and disputes over the authority to appoint bishops, which leading to the signing of the first concordats between the monarchies and the Holy See. All this did not prevent the rise of movements calling for the establishment of autonomous national churches independents of the pope, though without breaking with Rome.
The most representative case of this is that of French Gallicanism (Harouel et al. 2007, 382-386).[356] It is significant that in 1610, the Parlement of Paris ordered the burning of the works of the Spanish Jesuit Juan de Mariana (1536-1624), who they considered intellectually responsible for Ravaillac’s killing of Henry IV.[357]The fact that the kings were no longer under the authority of the pope also meant that the power of absolute monarchs ’ could not any more be justified by the fact that they were the rulers of traditionally ordered societies created and ordained by God. The problem, then, was that a new legitimization of royal power was needed.
9.1.3 Searching for a New Legitimacy: The Prevention
of Anarchy as a Justification for Power
In the Middle Ages, kings were able to assert their authority over feudal powers because there appeared jurists and political thinkers who justified this imposition, invoking legal validations. The old Roman law contained in Justinian’s Corpus luris Civilis was revived and applied to a whole range of customary, feudal, statutory, imperial and canon law issues (Robinson et al. 2000, 109), facilitated by academic interpretations produced by Glossators and Commentators (mos italicus), Decretists and Decretalists, with the pope ever considered the supreme authority.[358] As this new scholar-produced (rather than politically imposed) law was studied in universities all over Europe, and featured a common language (Latin) and a common legal culture (Calasso 1954,453-454), it was considered lus commune, a new body of law more original in the methods and reasonings underlying it than in its core principles (Reynolds 2012, VII, 497), which were eminently traditional and Christian.
The justification of royal power, then, was based on Roman legal texts appearing in the Justinian compilation. Principles such as Rex in regno suo est imperator and princeps legibus solutus est were taken and interpreted by medieval jurists precisely to buttress royal authority.[359] The jurists (legistes) of Philip IV of France, such as Guillaume de Nogaret (1260-1313),[360] turned to Canon Law to defend the proposition that the consecration of the king made him a monarch by divine right, thereby justifying his supreme authority over his kingdom—an argument used to thwart the pope’s claims to authority.
The political leadership of the papacy collapsed and the dream of a united, Christian West vanished, with the consequence that political decisions henceforth fell into the hands of secular authorities, with whom the Church was not to interfere (Strayer 1980, 389).The next key development was that the lus commune, based on the Roman canonical legal tradition, lost its ratio scripta status,[361] a trend which began in the Renaissance, with movements such as Legal Humanism (mos gallicus). Demonstrating the historicity and the relativity of the Corpus iuris destroyed the absolute authority which it had hitherto enjoyed. If Roman law was no more than the product of a given society from a given period, there was no reason why its authority should be applicable to others period, or be superior to current laws (van Caenegem 1994, 56). Therefore, the legitimacy of power had to rely on Natural Law, which fueled the new argument that the absolute power of kings was simply the only way to prevent chaos and maintain social order.
Everything started during the Renaissance, in an Italy torn between supporters of the pope and the emperor, with the Guelphs and Ghibellines in constant conflict,[362] generating a permanent state of chaos. From this anarchy arose a multitude of political units whose existence was founded on their brute power, provoking, as Burckhardt (2010, 2) points out, the rise of a new phenomenon in history: the state as an outcome of reflection and calculation, “the state as a work of art”. It was amidst these circumstances that Niccolo Machiavelli (1469-1527) lived. In his landmark work The Prince (1513), he offered rulers a series of formulas and pieces of advice to maintain, at any price, the power which guarantees social order. The “prince” no longer justified his power on the premise that he was the legitimate representative of God on Earth, or by tracing his authority back to the Roman emperors, but rather exclusively on his capacity for political survival.[363]
With the actions of all men, but especially those of princes, against whom there is no higher authority to which to appeal, their ends are simply considered.
The prince, therefore, must dedicate himself to overcoming difficulties and preserving his state. If he is successful in this, the means he employs will always be considered honorable, and be praised everywhere: the masses always focus on appearances, and are seduced by results. Now the world is almost entirely made up of the masses, and the small number of insightful minds in it do not announce what they can see until the countless hordes who see nothing no longer know what to think.[364]There thus began a secularization of the justification of political power which received its first theoretical formulation by jurist Jean Bodin (1529-1596), who lived in a France plagued by the long and bloody French Wars of Religion.[365] [366] This situation naturally, made him a firm supporter of strong and undisputed authority. Bodin presented his arguments in The Six Books of the Commonwealth, published in 1576, advancing the idea of sovereignty2 which he understood as absolute power, which takes precedence over everything and everyone else:
Sovereignty is that absolute and perpetual power vested in a commonwealth which in Latin is termed majestas (...) Sovereignty is not limited, in power, responsibility, or in time (...) it is necessary for sovereigns not to be subject to anyone else’s power so that they may (...) impose law upon their subjects and rescind or amend useless laws (...). The term needs careful definition, because although it is the distinguishing mark of a commonwealth, and an understanding of its nature fundamental to any treatment of politics, no jurist or political philosopher has in fact attempted to define it...23
Bodin, however, affirmed more than he actually explained the expedience of an absolute respect for sovereign power. Thomas Hobbes (1588-1679), went one step further.[367] [368] After enduring the English Civil War, from which Cromwell emerged victorious, Hobbes offered a justification for absolute submission to state power in his most famous work The Leviathan, the first edition being published in 1651 in an England profoundly affected by the beheading of Charles I (January 30, 1649).[369] Hobbes was reacting against the anarchy of the civil war he had witnessed. Thus, after writing that “where there is no common power, there is no law; where there is no law, there is no justice”, he went on to state that:
The only way to erect such a common power, as may be able to defend them from the invasion of foreigners, and the injuries of one another, and thereby to secure them in such sort as that by their own industry and by the fruits of the earth they may nourish themselves and live contentedly, is to confer all their power and strength upon one man, or upon one assembly of men, that may reduce all their wills, by plurality of voices, unto one will. Which is as much as to say: to appoint one man, or assembly of men, to bear their person; and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act, or cause to be acted, in those things which concern the common peace and safety; and therein to submit their wills, every one to his will, and their judgments to his judgment. This is more than consent, or concord; it is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou give up, thy right to him, and authorise all his actions in like manner. This done, the multitude so united in one person is called a COMMONWEALTH; in Latin, CIVITAS. This is the generation of that great LEVIATHAN, or rather, to speak more reverently, of that mortal god to which we owe, under the immortal God, our peace and defence.[370]
Despite their different approaches, Machiavelli, Bodin and Hobbes all came to the same conclusion: the state should be placed in the hands of a single person, a monarch whose power ought not to be contested in any way.[371] This figure, the prince, became the great protagonist of a new era in European constitutional history. As Anderson (2013, 15) points out, the rise of the absolutist state marked the demise of the feudal conception of law and power, as the centralized monarchies of France, England and Spain represented decisive ruptures with the old pyramidal medieval social structure, with its three estates and liege systems.
Although in some kingdoms royal absolutism appeared early, such as in Castile, where the kings imposed their supremacy as of the late fourteenth century,[372] the era of classic absolutism (Hochabsolutismus) would span the sixteenth and seventeenth centuries, even if in some countries, such as France, it would last until the second half of the eighteenth. This period of the history of Western Public Law is also known in German historiography as the Fiirstenstaat, literally the “State of the Prince”, because all branches of the state—executive, legislative and judicial— relied upon the monarch and exercised their powers in his name.
9.2