Making of a German Constitution : a Slow Revolution

46 • The Making of a German Constitutionthe laws of Justinian, and who claim that the Emperor exercises the same power overGermany as the ancient emperors exercised over the Roman Empire or that the Emperorrules Germany in his capacity as Emperor, suffer from serious delusions. 101‘Our Emperor,’ Conring concluded in Discursus novus, ‘has no power whatsoeverover any independent state, and by virtue of its autonomy even a small independentstate as, for example the Republic of Ragusa, enjoys exactly the same rights of sovereigntyas a large one.’ Since German ‘dignity and right of precedence stemmednot from the imperial title,’ he wrote, ‘the right of the German Kingdom will clearlyremain intact even if you abolish the imperial title totally’. 102 The legal and politicalfallout from this doctrinal explosion fell slowly as it had after Valla’s De falso.Nevertheless, the foundational myth of the Holy Roman Empire and the ImperialMajesty were undone. It was this that opened the door and formed the prelude tothe important rationalization of native German law, which, although interrupted byNapoleon’s imposition of French law on German soil, was revived by the historicalschool in the nineteenth century.After Discursus novus, Conring’s political writings were explicitly focused ondefining and delineating the political values of the respublica. He directed severaldissertations on the subject, including G. Pooch’s Disputatio politica de rebus publicisin genere (1639), E. Nissen’s Disputatio politica de rebus publicis in genere(1651), J. E. Busch’s De politia sive republica in specie sic dicta (1652) and O. J. vonOsten’s Disputatio politica de republica in communi (1653). 103 His own Dissertatiode ratione status (1651) also opposed Bodin’s theory of indivisible sovereignty andcould not have been more opposed to Hobbes’s Leviathan, which appeared in thesame year. 104It is in Dissertatio de boni consiliarii in republica munere (1652), however, whereone may detect an evolution of the traditional German identification of sovereigntywith jurisdiction. Here, Conring examined how laws (Gesetze), government (Obrigkeit)and citizenship (Bürgerschaft) should function in a polity, in which the aimabove all else should be to secure the common good. The form of law, he argued,should agree with the needs of states, and law should hold a mediating positionwithin states. Sovereign authorities (Herrschende), he wrote, were not to rule asdemigods, but also should be limited by law. Finally, he emphasized the need forcitizens to be knowledgeable about the impartial laws of the state, the aim of whichwas to create harmony between the groups in society. This, he believed, was the basisof a stable and rational state. Citing Florus, Seneca and Aristotle, Conring also emphasizedthe importance of a virtuous citizenry as the guard against corruption andthe need of these citizens to vigilantly guard against intimidation of their social bodyand usurpation of government authority. 105The radical politics of Conring’s writings cannot be emphasized enough. HorstDreitzel, who views Conring as ‘ein deutscher Machiavelli’, has emphasized his