Making of a German Constitution : a Slow Revolution

Prelude to Modern Germany • 43forms of government—monarchy, aristocracy and democracy—that were identifiedin Aristotle’s Politics. Monarchy, according to Polybius’s Histories, would inevitablydegenerate into its corrupt form of tyranny, aristocracy into oligarchy and, lastly,democracy into anarchy, and in Politics the key distinction between the healthy andsick forms hinged on the rule of law. Accordingly the notion developed in humanistpolitical thought that the only way to avoid such degeneration was by combining allthree healthy forms in a single polity to form a mixed constitution.In De iure praedae commentarius (1604), Hugo Grotius’s respublica referred tothe multitude of private persons coming together, of their own free will, for protectionand acquiring life’s necessities through mutual aid. 83 Echoing the Azoian doctrine ofiurisdictio, for Grotius law emanated from the consent of this unified body, producinga civil contract. ‘Civil power’, thus, ‘manifesting itself in laws and judgments,resides primarily and essentially in the bosom of the commonwealth itself’. 84 Sinceall of the people in a commonwealth did not concern themselves with the administrationof civil affairs, the exercise of lawful power was entrusted to a number of magistrates.Acting for the common good, these magistrates had authority to make lawsfor the respublica. In Grotius, the important theory of civil power articulated by theradical Spanish jurist Fernando Vázquez was merged with the language of the DutchRevolt. The concept of magistratus in Grotius emphasized the idea that those whoexercise civil power, whether kings, princes, counts, assemblies or town councils,are administrators, and, therefore, ‘public power is constituted by collective consent’derived in the first instance from the freely united body of private persons. 85 Hisrespublica mixta thus combined ‘the majesty of a prince with the authority of asenate and the liberty of the people’. 86In Central Europe, Johannes Althusius, Clemens Timpler and Johann Heinrich Alstedwere the main developers of German monarchomach theory, which also rejectedBodin’s conception of indivisible sovereignty. 87 Politica in Alsted’s Encyclopaedia(1630) emphasized the principle that voluntary association is the foundation of politicsand society. 88 According to Timpler ‘every civil society depends on the will andthe legitimate consent of those who join together to create civil life’. 89 Appealingalso to Vázquez and Bartolus, Althusius asserted that ‘the people, or the associatedmembers of the realm, have the power of establishing the right of the realmand of binding themselves to it’. 90 The populus came to constitute ‘the respublica,which, following Cicero’s classic definition is therefore literally a res populi’. 91‘Sovereignty’, as Alsted would write, ‘is the highest power, which the magistrate hasamongst the people by consent of the people.’ 92Political Aristotelianism also was marked by long assessments of the mixed constitutionsof ancient Sparta and Rome as well as England, Sweden, Venice and theGerman Empire. 93 Bartholomeus Keckermann’s Systema disciplinae politicae (1608)analyzed a range of political bodies, and his respublica temperata emerged as a mixtureof two or three of the pure forms. 94 The University of Tübingen professor oflaw, Christoph Besold (1577–1638), expressed a preference for the respublica mixta