Making of a German Constitution : a Slow Revolution

42 • The Making of a German Constitutionunderstanding the Reformation as, predominantly, a legal rupture. The jurisdictionof ecclesiastical courts, as Berman writes, was one the of the principle objects ofattack during the Reformation. 77 Witte argues effectively that the Reformation wasa ‘watershed in the flow of the Western legal tradition’. 78 Its radicalism was not inLuther’s posting of the Ninety-Five Theses in 1517, but the Wittenberg bonfire of10 December 1520. Organized by Philipp Melanchthon and others, Luther, along witha group of students and faculty, consigned to flames the papal bull threatening himwith excommunication, Pope Gratian’s Decretum and, most importantly, the fourbooks that made up the classical canon law. 79 In an environment in which the Churchalready faced local rejection of its secular jurisdiction, it was this that distinguishedLuther from earlier agitators, and it was this that formed the source of his swift excommunicationon 3 January 1521.A constitutional ideology developed around the battle over canon law, givingrise to an evangelical jurisprudence. This was evident in the Wittenberg School ofPhilipp Melanchthon, which became influential in seventeenth-century Denmark,and the Marburg School of Johannes Eisermann and Johann Oldendorp, more influentialin England. 80 Although erudite knowledge of the classics was apparent intheir writings, both Eisermann and Oldendorp had practical experience with localmunicipal legal structures. Eisermann served as a Schöffe on the Marburg Hofgerichtand his On the Common Good of Ordering a Commonwealth (1533) was translatedand printed in London in 1559. It emphasized building on the lessons of the classicalcommonwealths, and that history taught that ‘there is not a single foreordained ornatural system of society, politics, and law’. Rather ‘every people chooses its ownsocial form, its own political structure, and its own system of law’ based on a ‘combinationof nature, custom and reason’. 81 Originally from Hamburg, Oldendorp hadhelped draft the Rostock legal reformatio of 1530 and published some sixty workson law, including What is Equitable and Right (1529), A Statesman’s Mirror of GoodPolicy (1530) and A Methodology of Natural, Common and Civil Law (1539). Inhis writings, Oldendorp emphasized the preference for the nonviolent resolution ofdisputes. ‘War is justified only for defense against an unjust attack,’ and a civil polityshould seek to settle conflicts peaceably. 82 Since peace was so linked to law in theGerman tradition, this also offers additional evidence of the continuing strength ofthe dual conception of law in German political thought.By the late sixteenth century, a power vacuum had resulted from the Reformation.This produced, in Dutch and German political thought, a preoccupation withthe location of the suprema potestas (sovereignty) and the rights and duties of politicaloffices. Debate was provoked by Jean Bodin’s conceptualization of sovereigntyoffered in his Les six livres de la république (1576). While there was littledispute with Bodin’s view that legislative authority was the first mark of sovereignty,his insistence that sovereignty was indivisible and that this indivisibility renderedimpossible the existence of a respublica mixta (mixed constitution) was met withstrident objection. The mixed constitution referred to a mixture of the three pure