Making of a German Constitution : a Slow Revolution

44 • The Making of a German Constitutionin his De consilio politico axiomata aliquam multa (1622), in which senates andpopular assemblies were the sources of prudence, stability and virtue. 95 In a mixedconstitution, as he later extolled in Principium et finis politicae (1626), ‘the rightsof majesty’ are divided between the prince and assemblies of the estates and ‘thismixture seems to be the most finely balanced harmony, for some powers are best exercisedby one person, such as the power of judging and imposing punishments, thereare others in which the participation of the orders or estates could hardly be deniedwithout inequity’. 96To close this section, the goal here has been to show, first, that the identificationof sovereignty with jurisdiction was informed and strengthened by the politicalthought of the Reformation. The doctrine of jurisdiction emerged philosophicallyand was theoretically organized on the basis of German practices and rationalizedby German legal scholars. In addition, the continuity in the juridical organizationof German political thought should also be kept in mind by readers. Finally, whilereferences to classical learning abounded, this again was appropriated to support theevolving traditional arrangements of self-governance. Both Eisermann and Oldendorphad practical experience in municipal judicial systems and had participated inthe reformatio of urban laws.Hermann Conring and Early Modern Legal RadicalismIn the German case, the legal radicalism of the modern era was shaped by the legalradicalism of the premodern period. While, in recent years, scholars have identifiedthe scientization of urban law as the most salient feature of the Reception ofRoman Law, typically, the Reception refers to the year 1495, when the corpus iuriscivilis was accepted in the Holy Roman Empire as the common law of last resortand imperial appellate jurisdiction was introduced with the establishment of theReichskammergericht (Imperial Supreme Court). On the other hand, the traditionof local jurisdiction had produced immeasurable legal variety in the secular laws ofthe Empire. On the other hand, as classical canon law was invalidated by municipallegal reformations, the Empire would have been left without a law held in commonacross communities, and this also explains why Roman law became the source of theius commune (law held in common).The Reception of Roman Law accompanied the Landfriede settlement of the1495 Concordat at Worms, which was supposed to put an end to the violent resolutionof territorial disputes within the Empire and demanded that future disputes beadjudicated in imperial courts of law. Obviously, the peace of the land was disruptedby the religious wars associated with the Reformation, and, while Luther and Melanchthoninitially criticized the reception of a foreign law code, in the face of theviolence associated with the peasant revolts of the 1520s, they soon conceded thatit was a necessary expedient in the absence of a rationalized German common law.