Making of a German Constitution : a Slow Revolution

Prelude to Modern Germany • 47preference for a mixed constitutional monarchy. 106 Closer to the age, Samuel Pufendorf(1632–1694) regarded Conring as more radical, theoretical and better informedabout politics than most in his generation. 107 The ideas of key political thinkers, includingBaruch Spinoza, Pufendorf, Gottlieb Samuel Treuer and Ulrich Huber, werein some way indebted to Conring’s work. 108 Certainly, through at least Pufendorf,Conring’s political thought was bequeathed to the nineteenth-century generation ofGerman legal scholars. Finally, the most important point of this section has been toidentify the critical political rupture that resulted from the appearance of Discursusnovus. There was no longer a legitimate legal basis for imperial absolutism inGerman-speaking Europe after Conring showed the myth of Roman imperium to belittle more than a ‘delusion’ in his words. Discursus novus proved to be the importantfinding that allowed for the development of the enlightened legal reforms that werealready underway, in the German lands, just prior to the French Revolution.Prelude to Modern Constitutional TransformationThe constitutional crisis of the 1760s formed the immediate prelude to modern Germanconstitutional transformation, and it was in this context that the German identificationof sovereignty with jurisdiction began to take on modern form. By themiddle of the eighteenth century, a collection of documents was recognized by contemporariesas compromising the constitutional basis of the Empire. The GoldenBull of 1356 was seen as the founding constitutional document. It confirmed andamplified the arrangements set forth in the Declaration of Rehnse of 1338, whichfirmly established the office of the emperor as an elective one and designated theelectors. The second major document was the Landfriede of 1495, which, as JohannJakob Moser wrote, had replaced Faustrecht (right of private warfare) and was ‘anagreement and law (Vertrag und Gesetz) between the emperor and the imperial Estatesthat nobody in the German Empire shall use force against the other, but ratherthe course of law’. 109 The year 1495 also witnessed the Reception of Roman Lawin the form of the corpus iuris civilis and the establishment of the imperial appellatejurisdiction of the Reichskammergericht mentioned earlier. In addition to thesemeasures, the Peace of Augsburg of 1555 allowed princes to select Lutheranism orCatholicism for their realms and reaffirmed their autonomy in the states. It was accompaniedby the Execution Ordinance, which also formed a part of the basic lawof the Empire. Procedural ordinances, electoral capitulations and finally, the Peaceof Westphalia of 1648, from which derived the Landeshoheit (state autonomy), wereseen as the final measures of imperial basic law. 110 It is important to keep in mindthat no one single document was understood to stand alone as a basic law. Ratherthe imperial constitutional outlook subscribed to the idea that the constitution hadcome into being through successive agreements over time and was comprised ofmany legal measures.