Reformed Monarchomachism and the genre of the ‘politica’ in the Empire

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The Politica of Johannes Althusius’ and the meaning of hierarchy in its constitutional and conceptual context[1], by Robert von Friedeburg.

Recently, J.H.M. Salmon stressed the ambivalent nature of both Bodin’s work and of that of a number of his German readers. Many attempted to combine his terminology of sovereignty with allowances for the privileges of the imperial estates[1]. E.g., Christoph Besold, an alleged source for Presbyterian theorist George Lawson, distinguished maiestas personalis, owned by the emperor, and maiestas realis, resting in the empire, but took his distinction between civitas and respublica from such a clearcut advocate of absolutism as Henning Arnisaeus[2]. Arnisaeus himself distinguished between the location of sovereignty and the administration of power, effectively spoiling Bodin’s argument on the indivisibility of supreme power[3]. On the other hand, the notion of sovereignty of his outspoken opponent, the other alleged source of Lawson[4] and «populist reversal of Bodinian absolutism» Johannes Althusius[5], was received by one of the few German adherents of Hobbes, who even tried to synthesize the work of both[6]. Indeed, intellectual transfers and political recipes of many major works made in the context of the Empire make clearcut divisions along received lines such as populism, absolutism or constitutionalism hard to draw.

            To be sure, this terminology, as long as qualified in a way to prevent anachronistic misunderstandings, helps to measure past texts against later distinctions. But since the late 1960s, when historical hermeneutics reconquered the history of political thought[7], the meaning of past arguments has been reevaluated and some alleged high roads to modern thought[8] have been discovered to be much less straightforward then once thought. It has become questionable to assume a specific affinity between reformed thought and modern ideas of revolution or to take the location of power with the estates, the rooting of maiestas in the populus and the concept of associations in Althusius’ Politica as tokens leading the way to parliamentary governance in any clearcut sense[9]. True, contemporary adversaries defamed his championing of the rights of estates as a doctrine dangerously subverting government and placed him side by side Milton’s republicanism[10]. But neither contemporary labelling by hostile adversaries nor alleged paths of the reception are unambiguous devices to establish the meaning and usage of the Politica[11]. For one, what figured during the seventeenth century in the Empire as a struggle between the power and the rights of the Emperor and imperial estates[12] did not easily translate, into a concern for the rights of territorial estates, let alone subjects. The multilayered process of the streamlining of administration and the establishment of government in the empire – executive bodies in the Empire, imperial estates building up their territories, territorial estates in Böhmen, Mecklenburg’ Silesia and elsewhere consolidating jurisdictions[13] – explains ambivalences in the meaning of Althusius’ Politica only to some degree. Indeed, both the imperial constitutional context and the meaning of concepts indicated by such terms as “representare” and “concordia”[14] have been highlighted by the recent debate on the reception of Althusius in the “politica” of English presbyterian George Lawson. Julian Franklin’s point of departure is the fundamental difference between the multilayered structure of government and rights of sovereignty in the Empire and the single-layered one in England[15]. Any transferal of such ideas to England, lacking this structure, had to do serious damage to the whole argument by producing a conceptual leakage with regard to the practical exercise of popular sovereignty[16]. While Franklin exploits this leakage by arguing that Lawson’s argument provided Locke with a notion of true popular sovereignty, not mitigated by the representation of estates[17], Condren rather looks at Lawson’s struggle with received concepts of the universitas and its representation[18]. Of course, both approaches have to complement each other when evaluating the “Politica”. This article seeks to consider in turn recent research on Althusius’ “Politica” in the context of its genre (I), and on the meaning of the concepts of representation (II) and “concordia” with regard to the establishment and meaning of government (III).

I – Accounts from law faculties throughout the Empire was meant to train later civil servants for work at imperial law courts, territorial administrations, knightly corporations and imperial circles alike. Thus, they had to remain much more cautious about the actual location of sovereignty than their English or French counterparts. The structure of the Empire made allowances for shared power and multiple rights advisable. Only after 1791 and the dissolution of the Empire the idea of rights of sovereignty being variously spread among the Emperor and the Imperial estates began to be superseded for good. Under the influence of Gentz’ dualism of traditional corporate and modern representative constitutions monarchical and popular sovereignty began to be pitted against each other. The subsequent historiographical debate began to reorganize the political thinking of the past in terms of this alleged dichotomy and found past thinkers more or less wanting, depending on their contribution to the emergence of what was then thought to be the true idea of sovereignty. Therefore, the politics prior to 1800 were increasingly understood in terms of an alleged dualism of estates and princes. Liberal thinkers tried to defend their claims for political participation in the monarchical state with reference to models of constitutional control allegedly rooted in the German past and therefore uncompromised by the French Revolution[19]. Against this background, Gierke rediscovered Althusius as his champion of “Genossenschaftsrecht” as he thought a kind of participation in government and antidote to absolutist lawmaking rooted in the German medieval past[20]. Current research on Althusius has abandoned this forced interpretation and has relocated emphasis on the evaluation of his “Politica” as part of the genre of the same name[21].           

            From the 1580s to the 1620s a wave of treatises saw a publication that was subsequently identified as core texts of this genre as it was about to emerge[22]. Some of the authors were Reformed (Althusius, Keckermann), some Catholic (Contzen), but most were Lutheran. These works reflected a number of diverse developments at universities all over the Empire, in particular the scholarly reception of current legal and political thought and reactions to contemporary confessional strife. The Lutheran reformation had already given the occupation with Aristotle’s politics a new emphasis’ beginning with Melanchthon’s refusal to find evidence for the organisation of the body politic in scripture and his 1530/31 “Commentarii in aliquot politicos libros Aristotelis”. From 1535 editions of Aristoteles; politics mushroomed[23]. The Lutheran distinction between revelation and law allowed Lutheran civilians to build up a sphere of inquiry into the nature of politics not directly dependent on the interpretation of scripture. Neo-Aristotelianism did not so much provide a guideline determining the argument – apart from general assumptions on the ethics and aims of government[24] – but rather a set of questions, problems and organizational procedures to integrate a number of varying concerns as they came to be considered.

            These concerns had been added in the course of the growing body of constitutional thought on the Empire and the increasing streamlining of government in town and countryside[25]. Moreover, from the 1570s the strain on practical politics due to confessional tensions brought home to scholars the need for conscious repair and consolidation of the body politic[26]. Theoretical and practical knowledge on the origins and legitimacy of society and government, updated information on current legal procedure and sophisticated advise on specific means to uphold order needed to be moulded into a new discipline for both teaching and learned inquiry, From the 1580s the reception of Bodin gave this alleged need no further focus[27]. Moreover, confessional strife kept stimulating debate on these issues[28]. Subsequently, topics such as the philosophy of politics, guides to the developing imperial public law and advice on the upkeep of order were merged to a new independent subject in the spectre of the artes liberales. Its object was politics and the standard kind of publication highlighting its birth was the “politica”, summoning political philosophy, legal training and practical advice[29].

            Within this genre, various strands of thought are commonly distinguished. Lutheran works on the Monarchia Christiana emphasized the independence of the church and the responsibility of lay authorities to the upkeep of a pious order, frequently making use of Lutheran three estate theory (Reinkingk)[30]. Neo-Aristotelians (Arnisaeus) is alleged to have been particularly engaged in the methodical exploitation of the Aristotelian renaissance[31]. Some accounts remained more indebted to Lipsius and the rhetoric of Tacitism[32]. Althusius eschewed easy allocation to any sub-category not least due to his terminology[33].

            Despite significant differences among these writers, all reflected the constitutional experience of the Empire and a common concern for order. Political practise in the Empire was reinforced and enshrined in the treatise of Augsburg 1555 and Osnabrück 1648. It remained based on the achievement of imperial “Landfrieden” and its medieval basis, the emergence of territorial sub-sovereignty (Landeshoheit) exercised by the imperial estates[34]. Within that framework, the “politica” was meant to provide an ars conservandi in time perceived to be troubled. The body politic was defined as a structure of some giving orders and therefore ruling and others obeying those orders. Therefore, to transform any loose number of men into a body politic government had to be introduced. The champion of monarchical absolutism Henning Arnisaeu was quoted for promoting this view[35] just as his opponent Althusius[36]. Thus the government was meant to be a technical prerequisite of the good life, not a matter of rational choice. The question of how many were meant to rule one, some, or many – was therefore just as well a matter of technical debate as to what form of government did suit specific circumstances. The plurality of forms of government in the Empire did prevent any outright condemnation of any of those forms anyway, at least for teaching purposes. Most authors, including Althusius, prefered monarchy for any body politic larger than a town and identified democracy with turmoil and technical problems of government as a consequence of the nature of men[37]. Thus, magistrates in command over obedient subjects were conceived to be a functional necessity no matter what form of government was at issue. More specifically, the main issue of these works was how to avoid, forestall or suppress internal conflict for the sake of the common good, for unity and the presence of internal harmony was seen as a key problem. The “politica” as a genre – from the pen of Althusius[38] just as from Arnisaeus – was therefore not least a body of work dedicated to the control of subjects and to the avoidance of turmoil. It was an exercise in the sophistication of the upkeep of order. It meant to forestall disorder, not to support rebellion[39].

            While historians of political thought agree on this general evaluation, they have mainly followed one of two paths to fit the genre into the general development of political thought. Termed an «armament of state power» and a «philosophy of the uprising territorial absolutism»[40], one strain of research has measured the “politica” against its performance as a stepping-stone towards modern public law and state-building. Its very core, the combination of ethical arguments and practical politics, the argument goes, subsequently shipwrecked at the rocks of confessional conflict, sharpened in the empire after the armistice of the House of Austria with the Ottoman Empire[41]. Then events exploded the unity of normative and empirical observations in the politica. Aristotelian notion of body politic had to be abandoned. An empirical and non-normative discipline of imperial public law had to emerge, in its wake clearly distinguishing the demesne of the law from the demesne of moral inquiry, cameralism and power politics. From Limnaeus onwards, Michael Stolleis scrutinized the path of that disintegration of the “politica” via Conring and culminating in Pufendorf[42].

            The main alternative account values the achievement of the “politica” higher. It contributes its demise to the rise of the modern language of natural rights[43]. But it argues that the genre helped to develop the regulatory concern for matters of everyday life that grew from concerns of town governments into territorial administration[44]. Moreover, to Horst Dreitzel, men like Arnisaeus already conceptualized the problem of unsocial sociability and insisted on the neutrality of the state in matters of religion[45]. However, there is an agreement that in none of these works any notion of modern contract can be discerned, for neither Althusius’ politeuma not Arnisaeus’ res publica is founded by voluntary contract nor are their notions of law wholly subject to volatile decision-making[46]. Moreover, they did not envisage a societas inter aequales, as Hobbes, Pufendorf and Locke did[47]. Against this background, two emphases of current research on Althusius will be evaluated more closely. Both have a direct impact on our understanding of the relation of men and government in his politica. These concern the issue of representation and of harmony.

II – To Arnisaeus civil society is the demesne of the private and the pre-political rights of subjects against the state. But it does constitute a corporation capable of any legal action in its own right[48]. Closely following the influential translation of Aristotle by Petrus Victorius that effectively deprived the notion of civitas of being a body with political power, he wrote «res publica est ordo totius civitatis consistens in regimine summae potestatis per medior magistratus»[49]. The monarch carries title by virtue of the Lex Regia, the Jus Belli or the right of succession[50]. At the same time, he represents the res publica as supreme magistrate like an officer his corporation in legal affairs. This concept supported the image of caput and corpus to depict the relation of magistrate and universitas. In De republica (1615), the supreme magistrate, in particular in the case of the accession of a new king, is even allowed to break positive law because he is by definition acting on behalf of civil society[51]. As early as 1625, Christoph Besold protested that this did not make sense, for the head was to be thought of as only the head of the body, but not as the whole body itself[52]. Further development of this line of argument led to the use of contract theory in the hand of absolutism by developing the argument from representation by mandate[53].

            The reputation of Althusius’ Politica of being subversive to monarchical government stems not least from his insisting first on locating sovereignty in the populus, second on having this populus form a corporation prior of an independent from the establishment of government proper and third allocating a law, the ius symbioticum, to this corporation, transforming it into the politeuma[54]. Among the roots of this concept was the legal reasoning of conciliarists and prince-electors in their case against the papacy. The body politic, this argument goes, has to be understood as an universitas resembling a corporation. Prior to and independent from the inauguration of magistrates that corporation has it own laws and regulations that must not be violated. Given specific requirements were met it could be assumed that the corporation was present and it could be conceived of acting on its own behalf and, for example, choose its officers[55]. E.g., in 1338 the prince-electors backing Ludwig the Bavarian against the pope claimed that their election of the new German King carried legitimacy despite the lack of papal support for a number of reasons, one of them that they had acted by virtue of being universitas of the empire[56]. Legal philosophy, in particular at Salamanca, contributed a refined notion of Thomist natural law, a ius gentium secundarium, and struggled to think relations within the societas in terms of legal contract[57]. These claims had been specified for practical politics during the debate among protestants reacting to events such as the Schmalcaldic War 1547 and Bartolomew day’s Massacre in 1572[58]. While the adaptation of legal reasoning developed for private corporations such as merchant companies to society at large had made it possible to link the creation of a magistrate to legal arrangements with the populus that were subject to conditions, it carried further implication as well. For the populus to act as a corporation, certain conditions had to be met[59]. It is here that the issue of representation comes in.

            Hasso Hofmann has distinguished various models of representation at stake with reference to Johannes of Segovia’s analysis of 1441: representation by similarity, representation by nature – in the case of father and son -, and representatio potestatis – i.e. by legal mandate, for instance in the case of the minority of a person or in the case of the legal officer of a corporation pursuing its business. In each case, the legal identity of two legal persons is assumed, albeit for different reasons. For example, the formulation personam alicuius representare indicated the action of an officer of a corporation to pursue its legal business by virtue of this office. While the representatio potestatis could be brought into line with the image of head and body, the representatio identitatis, Segovia’s final notion, worked from the pars pro toto argument mentioned above. Formulations like populum representat indicated the fact that a number of persons had assembled and made their decisions in a way that they could be assumed to be the corporation in question no matter how many more members it consisted of[60]. Althusius used the representatio potestatis to think about the relation of the supreme magistrate to the regnum of the town mayors to their towns – they represent the respective body politic by virtue of being legal officers of a corporation. But he did not want to see the regnum being represented in only this way. Rather, he used the representatio identitatis for the ephors that as a group stood above the supreme magistrate. Moreover, both notions of representation appear whenever he turned from the consociationes privatae ant the politeuma as a corporate body to the regnum as the state owning imperium. That imperium had to be handled by representative bodies acting on behalf of the populus[61].

            The issue of representation is thus crucial in two respect. First, it allows the representing body, from ephors via provincial assemblies to town senates, to absorb the will of the people. Second, it distinguishes Althusius systematic description of the various groups the universitas consists of from his legal account of the regnum[62]. With regard to the former, various consociationes[63] privatae are summed up, from families to guilds. They make up consociationes publicae particulares – towns and provinces[64]. Consociationes publicae particulares are capable of acting on behalf of the private associations as persona representata. Imperium, however, rests only with the consociatia publica universalis or regnum. Only the supreme magistrate of the regnum can bestow legal privileges to other corporations, for instance to those towns that Althusius by that token denotes as civitates. The Imperial privileges turning a town into an imperial city are clearly the model for this account[65]. While the universitas is made up of smaller units[66], the regnum is a unitary monarchy[67] with the exercise of the rights of sovereignty located in those representing that regnum as a whole by virtue of representatio identitatis or potestatis, the ephors or the supreme magistrate[68]. The Emperor is thus superior to any other magistrate, save the group of ephors acting together, because in that case they are, by virtue of representatio identitatis, the empire[69]. To describe the establishment of these superior magistrates Althusius depicts the Roman law equivalents of estates[70]. Again under current constitutional practice in the Empire, the imperial estates indeed were the Empire[71]. Likewise, only the territorial estates make up the legal representation within each province[72]. Hasso Hofmann has traced this dual structure of Althusius’ argument, his description of the universitas and his account of the regnum, to the «self-perpetuating logic of the often-used exampla profana … (and) the examples of imperial constitutional problems [They were, R.v.F.] coloured by the specific privileges of the imperial estates»[73] which were difficult to reconcile with his «sociological theory of the communal construction of the polity»[74].

            The Politica provides an account of Bodinian unitary sovereignty to be applied to any large monarchy such as Spain, Germany or France. He placed sovereignty in the populus and placed power with the leading estates. Given the fact that primarily estates comprising the high nobility of the respective country were able to mount a resistance against the modern monarchy in the seventeenth century., it does not come as a surprise that contemporaries supporting monarchy disliked these arguments. At the same time, the Politica led the way to an understanding of the citizenry of the Empire being simply the imperial estates[75]. Furthermore, his negligence of detail as to how the ephors might be instituted and his willingness to accept the existence of a body of ephors already doing the job by precedent hints to his lack of an understanding of the need to negotiate substantial conflicts by juridic devices[76]. Althusius’ background, the political situation of the reformed Wetterau counts in Western Hesse, led him to allow for the constitutional role even of imperial estates below the imperial princes. Subjects, however, had to obey.

III – Rather than providing for juridic tools to solve sustained internal turmoil, Althusius insists on the establishment of harmony[77]. Despite the tools of representation and dual structure of argument discussed above, the Politica has to pay a prize for its allocation of sovereignty to the populous and its allowance for the politeuma. It has to account for the working of this politeuma ant its ius symbioticum. Michael Behnen pointed out that rights and obligations of the symbiotics are too be understood with regard to the establishment and upholding of social interaction described in the Politica in terms such as “symmetria”, “concordia”, “symphonia” and “harmonia”, for only then the aim of politics was, to Althusius’ mind, accessible[78]. Further, Behnen argues that Althusius depended on Cicero’s notion of “juris consensu” for his understanding of the multitude turning into a body politic[79]. Consent is at the core of that body politic[80]. That consent is measured against the Decalogue but frequently described in aesthetic categories like musical harmony. To actually make men achieve and keep this harmony, Behnen further argues that Althusius provided frequent advise for magistrates to direct, discipline and manipulate the behaviour of subjects[81]. In particular, he argues, the middle parts of the Politica were concerned, like other pieces of the genre, with the practical problems confronting governments in controlling the men and his vices. Behnen has submitted these middle sections of the Politica to close scrutiny. While chapters I to XX deal with the construction of the consociationes and the establishment of public order and chapters XXXII-XXXIX deal with topics such as «de natura et affectione populi» (XXIII), «de censura» (XXX) or «de studio concordiae conservandae» (XXXI). It is in these chapters that Behnen detects notions of Tacitist dictatorship in the politica, strongly influenced by the accounts of Botero and Clapmarius[82].

            Behnen’s case has been criticised as too far a swing of the pendulum[83]. Althusius’ reliance on the Decalogue allows to characterize his account rather as a blueprint for the pious German police state, if coloured by the specific situation of imperial estates less mighty then the imperial princes, than a basis for a secular Tacitist dictatorship[84]. But the question remains how the Politica reconciliates the importance of harmony with the negative psychology of men. Althusius’ account of social life gives some insight into his ideas on the mechanics of it. As has been argued above, subjection into the order of the body politic is not portrayed as a voluntary act in need of critical scrutiny but as the necessary outcome of the distribution of labour, itself being a natural outcome[85] of God distributing his gifts among mn in an unequal fashion. Althusius then qualifies these differences among men in their capacity as private members of the consociationes privatae in a rather negative fashion. For example, he reminds the reader of the danger of ambition, quoting Ghibellines and Guelfs in Italian cities[86] and despises luxury among men[87]. The existing variety of men and wealth, while accepted as a fact of life, are anathema to the harmony that is to be achieved. Therefore, the ocean he finally advises the prospective magistrate to sail the ship of the commonwealth through[88] is a stormy sea of human tempers and habits[89].

            At one point, Althusius seems to go for a momentous transformation in social character, turning the members of the consociationes privatae and their evil selfishness into citizens[90]. However, even in one of the first passages dealing with this issue, Althusius turns this argument around by equating the difference between magistrates and subjects into a part of the inequality in social life with regard to different professions, incomes and so on. Divergence among men is thereby turned into a prerequisite of society with the holding of office included[91]. Lack of government, i.e. lack of some ruling and others obeying, would mean «ut ipsa aequalitas esset summa inaequalitas».

            In a later passage, his ideas on constitutional issues and their relation to his thinking on social life, in general, are intertwined in a way that puts even more light on this issue. Again, Althusius need not to specify nor engage in debates on contract and the state of nature, for neither submission to government nor lawmaking is meant to be voluntary. A close examination of his argument in chapter XIX[92] will suffice to illustrate his mixture of concepts of representation, notions of the distribution of labour giving legitimacy to government and human psychology. He dwells first on examples for the constitution of the supreme magistrate by the contract between the magistrate, the ephors and the people being represented[93]. He exemplifies his point by reference to Sparta, the Roman Emperors and the senate (sic!) and among contemporary examples the French, Denish, English, Swedish, Aragons[94]. His stress is on existing relations between estates and monarchs. Accordingly, he stresses that what manners in terms of how the magistrate is instituted is suitability that has to fit each specific situation. The supreme magistrate is then described with a vocabulary conveying the sense of utter urgency that Althusius attributes to the hierarchy of order and subjection, indicating that lack of the magistrate means immediate decay. To press home this point, Althusius uses metaphors such as the one of the ship and the navigator or the body and the soul. He concludes with a metaphor from musical harmony as is to be desired. Likewise, poor and rich, order and subjection are prerequisites for the working of the body politic[95]. Moreover, these specifications follow immediately on his mentioning of a pact to form the body politic, not in a later chapter elsewhere[96]. Bothe features, the lack of distinction between the distribution of labour and the allocation of power to govern and his use of identity representation, avoid those problems that the language of rights and the development of modern contract theory were meant to solve.

IV – Recent research has emphasized the imperial and conceptual context of the Politica[97]. On the one hand, Althusius supported the Dutch rising and organized Emden’s struggle against its counts while suppressing large parts of the unwilling citizenry along the way. His Politica is perhaps the most learned and elaborate account of the concept of pars pro toto representation, combining the framework of sovereignty allocated to the populus with constitutional practice within the Empire. The established practise of the shared administration of government by Emperor and imperial estates were transformed by Althusius into a programme that reflected the aggressive stance of some of the reformed imperial estates. On the one hand, there is ample evidence on the dislike of the anti-monarchical reaction for ideas od this kind[98]. They could be used to distinguish a king from a tyrant that might be resisted[99], both by way of appealing to the law as beyond the reach of the supreme magistrate and by anybody of men claiming to represent the universitas. On the other hand, his threefold distinction of legitimate violence against higher orders as resistance, self-defence and the defence of one’s fatherland had become, by 1620, a standard repertoire among Reformed and Lutheran authors in Germany alike. Prior to the execution of Charles I, in 1649, Althusius’ Politica was a standard account[100]. It is thus crucial to recognize that only from 1649 Althusius became what he was going to become too influential historians like Hans Baron by 1939 – a German opponent to monarchical rule[101]. Althusius was quoted in the aftermath of the Bohemian rebellion, but he was not a radical promoting the fight against “black magistrates” as a pious duty as Pierre Viret had done in France. In the Empire, from the 1660s Conring’ and Pufendorf’s legal empiricism and the reception of Grotius could dispense with Althusius’ constitutionalism. Thus, of the later standard textbooks, only some kept mentioning Althusius[102]. The actual nature of both his assumptions on representation and on government and their specific reinforcement in the imperia context prove therefore vital to an understanding of the Politica. It included claims that could have been radicalized by later recipients, provided it was dropped – the possibility of a “Franklin-leakage” of intellectual transferal. Therefore, the actual relation between the issue of representation that was going to become increasingly important during the seventeenth century and the legal construction of the body politic, the issue of harmony and the exploitation of a “Franklin-leakage”, given substantial evidence was brought forward, remain to this writer fascinating prospects of further research[103]. Even in the event of such a case discovered, however, two equally fascinating questions would have to be faced. Why the Politica should have been used in the first place, and to what extent its concern had to be distorted to mould it into a usable argument. Distortion, however, is at least as good a tool to understand political thought as any other use of text – provided it is recognized as such.

[1] J.H.M. Salmon, The Legacy of Jean Bodin: Absolutism, Populism or Constitutionalism?, in: History of Political Thought, 17(1996), pp. 500-21; on Bodin’s qualified absolutism Julian H. Franklin, ‘Sovereignty and the mixed constitution: Bodin and his critics’, in: J. H. Burns (ed.), The Cambridge History of Political Thought,1450-1700, Cambridge 1991, pp. 298-328, p.  308-9; in particular on his differentation between monarchy and tyranny Wolfgang Mager, ‘Republique’, Archives de Philosophie du Droit, Tome 35, Sirey 1990, pp. 257-273, p. 267; in particular on Bodin’s  treatment of harmony Simone Goyard-Fabre, Jean Bodin et le droit de la république, Paris 1989, pp.255-78, on the problems of the application of Bodin in the Empire Michael Stolleis, Geschichte des öffentlichen Rechts, vol.1, München 1988, pp. 180-3. “Imperial estates” denote estates of the empire, i.e. those families and corporations summoned to the imperial diet. “Imperial privileges” denote privileges given by the Emperor. “Politica” refers to Althusius’ main work, while “ ‘politica’ ” refer to any work of the genre of that name.

[2] Christoph Besold (1577-1638), Politicorum libri duo, Tübingen 1618; Franklin, “mixed constitution”, pp. 323-28; Stolleis, Öffentliches Recht, pp. 120-22, 180-1.

[3] Horst Dreitzel,  Protestantischer  Aristotelismus und  absoluter  Staat. Die “Politica”   des Henning Arnisaeus  (ca. 1575-1636), Wiesbaden 1970, pp. 332-34; Stolleis, Öffentliches Recht,  p. 180.

[4] George Lawson, Politica Sacra et Civilis (1657-60), ed. by Conal Condren, Cambridge 1992, p.75 mentioning Althusius, pp. 45-6 and at other places mentioning Besold.

[5] Michael Mendle, “Parliamentary sovereignty: a very English absolutism”, in: Nicholas Phillipson, Quentin Skinner (ed.), Political discourse in Early Modern Britain, Cambridge 1993, pp. 97-119, p. 110 with respect to his single sovereignty-conception; Johannes Althusius (1557/63-1638), Politica Methodice Digesta, Herborn 1603, 1610, 1614. The 1614 edition has been made accessible, although with omissions, by Carl Joachim Friedrich (ed.), Politica Methodice Digesta of Johannes Althusius (Harvard Political Classics vol. II, Cambridge (Mass.) 1932; the abridged English, translation by Frederick S. Carney (ed.), The politics of Althusius, London l964, is useful at a first glance at the text. But both the translation itself and the omissions – primarily the text printed in little print in the original and providing illustrations, quotations and examples on core statements, make the translation almost useless for any more serious approach; on the Politica see recently Karl Wilhelm Dahm et al. (eds.), Politische Theorie des Johannes Althusius, Berlin 1988; Giuseppe Duso (ed.), Herrschaft und Gemeinwesen im Umkreis von Althusius, Wolfenbüttel 2000.

[6] On J. C. Becmann see Dreitzel, Arnisaeus, p. 412; Wolfgang Weber, Prudentia gubernatoria. Studien zur Herrschaftslehre in der deutschen politischen Wissenschaft des 17. Jahrhunderts, Tübingen 1992, pp. 103, 145-50.

[7] James Tully (ed.), Meaning and Context: Quentin Skinner and his Critics, Cambridge 1988; Otto Brunner, Werner Conze, Reinhart Koselleck (eds.), Lexikon der Geschichtlichen Grundbegriffe, 7 vols., Stuttgart 1972-1992

[8] Specifically on Althusius, Otto v. Gierke, Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien, Breslau 19022; G. P.Gooch, English Democratic Ideas in the Seventeenth Century, 1898, 2nd ed. with supplementary notes and appendices by H. J. Laski, Cambridge 1927, who suggests p. 48 that «in the concatenation of political ideas, the aristocratic superstructure is easily lost sight of and the democratic substratum easily borrowed». Of course, both statements are steps of a shared Anglo-German liberal-protestant pride in allegedly protestant achievements in civilisation (e.g. James Anthony Froude, “Condition and Prospects of Protestantism”, in: idem, Short Studies on Great Subjects, London 1898, pp. 146-79, in particular pp. 158-9 on the “spiritual affinity” of the “teutonic races”) to a re-evaluation of a German tradition of obedience beginning around 1900 by Ernst Troeltsch and Max Weber, reinforced by the rise of Nazi-Germany, pitting Lutheranism against Calvinism (see Hans Baron, “Calvinist Republicanism and its historical roots”, Church History  8 (1939), pp. 30-42). In this vain see Frederick Smith Carney, TheAssociational Theory of Johannes Althusius. A Study in Calvinist Constitutionalism, PhD submitted to the University of Chicago, Chicago 1960. Today, the alleged early modern opposition of estate assemblies to the emerging territorial state is evaluated with a view to modernity very cautiously by Thomas A. Brady jun., “Some Peculiarities of German History in the Early Modem Era”, in: Andrew  C. Fix, Susan C. Karent-Nunn (eds.), Germanica Illustrata, Kirksville 1992, pp. 197-217, p. 211 on the “parliamentary governance” in Southwest Germany; much stronger claims, although put in metaphor from grammar, in Peter Blickle, “Kommunalismus, Parlamentarismus, Republikanismus”, in: Historische Zeitschrift, 242 (1986) pp. 529-56, p. 546 claiming parliamentarism and republicanism to be the “comparative” and “superlative” to “communalism”.

[9] E.g. Quentin Skinner, “The Origins of the Calvinist Theory of Revolution”, in: Barbara  C. Malament (ed.), After the Reformation, Philadelphia 1980, pp 309-30; Hasso Hofmann, Repräsentation. Studien zur Wort und Begriffsgeschichte von der Antike bis ins 19. Jahrhundert, Berlin 1974.

[10] See e.g. Henning Arnisaeus, De autoritate principum in Populum semper inviolabili … Straßburg 1635, c I, pp. 2-9;on Henning Arnisaeus’ (1575?-1632) attacks see Dreitzel, Aristotelismus, pp. 145-47; Gerhard Menk, “Johannes Althusius und die Reichstaatslehre”, in: Dahm, Althusius, pp. 255-300, pp. 261-72 on Hermann Conring’s attack on both Milton and Althusius and on Mathies Pasor, shortly lecturing in Oxford in the 1620s and later in Gröningen, who intervened in a debate between Claudius Salmasius (Leiden) and John Milton over the execution of Charles I, with reference to Althusius.

[11] Current evidence on his reception is restricted to scattered remarks, mainly in unpublished disputations at German law faculties (Menk, ‘Althusius’, pp. 255-300),in two English pamphlets concerning the execution of Charles I (Gooch, Democratic Ideas, p.48)and in the diary of a Scottish co-drafter of the National Covenant (Archibald Johnston of Wariston, Diary…. ed. G.M. Paul, Edinburgh 1911, p. 348). Despite this scatchy evidence, see for farreaching claims: Karl-Wilhelm Dahm (“Johannes Althusius  ein Herborner Rechtsgetehrter als Vordenker der Demokratie” in: idem, Althusius, p. 21-41, 22on Althusius being a «father of the American constitution», no evidence cited (but quoted approvingly by Peter Blickle, “Über den Umgang mit dem wissenschaftlichen Ordnungsbegriff Kommunalismus”, in:  Zeitschrift für historische Forschung, 22 (1995), pp. 246-53, p. 251 note 18); Hugh Dunthorpe, “Resisting monarchy: The Netherlands as Britain’s school of Revolution in the late sixteenth and seventeenth centuries”, in: Robert Oresko et al. (eds.), Royal and Republican Sovereignty in Early Modem Europe, Cambridge 1997, pp. 125-48,quotes Wariston’s pamphlets (p.139, note 59, but with reference to the diary that only states interested reading) and Edward J. Cowan (in: John Morrill (ed.), The Scottish National Covenant in its British Context 1638-1651, Edinburgh, 1991, pp 68-89, p. 78on the Politica as a «blueprint for the Scottish Revolution» again based only on the Wariston reference), Samuel Rutherford’s Lex Rex, London 1644, as the «most Althusian ofall Covenanter’s tracts» (again, Lex Rex does quote the Politica, but only occacionally, see on Rutherford John D. Ford, “Lex Rex iusta posita: Samuel Rutherford and the origins of government”, in: Roger A. Mason (ed.), Scots and Britains. Scottish Political Thought and the Union of 1603, Cambridge 1994, pp. 262-92) and Alexander Henderson, Instruction for Defensive Arms (1639), in: Andrew Stevenson, History of the Church of Scotland From the Accession of Charles I to the Restoration of Charles II, 4 vols., vol II, Edinburgh l753, pp. 686-95, again, no clearcut borrowings from Althusius can be discerned); see likewise Edward J. Cowan, “The political ideas of a covenanting leader: Archibald Campbell, Marquis of Argyll”, in: Mason, Scots and Britons, pp. 241-61, alleging that the Earl of Argyll’s insistence on the necessity for good education of magistrates one of the most, widespread topics in contemporary thought were evidence for his reading of Althusius; moreover, Althusius still figures as a name used to confer legitimacy for whatever master-narrative is meant to be supported, see Thomas O. Hüglin, Sozietaler Föderalismus. Die politische Theorie des Johannes Althusius,  Berlin 1991 (Althusius as the father of federalism); on the other hand, Carl Joachim Friedrich, Johannes Althusius und seine Wirkung im Rahmen der Entwicklung der Politik, Berlin 1972, alleges pp 108-9 that the Politica supported the position of James I, with respect of the oath of allegiance, and indeed James possessed a copy of the edition of 1610, now in the possession of the British Library, see E.C. Simoni (ed), Catalogue of Books from the Low Countries 1601-1621 in the British Library, London 1990, p.12. On new evidence on his reception Robert v. Friedeburg, From collective representation to the right of individual defence: James Steuart’s Ius Populi Vindicatum and the use of Johannes Althusius’ Politica in Restoration Scotland, in: History of European Ideas 24 (1998), S. 19-42.

[12] On the development of political theory with respect to imperial public law and the imperial diet see Dietmar Willoweit, Deutsche Verfassungsgeschichte, München 1990, pp. 105-50; Friedrich Hermann Schubert, Die deutschen Reichstage, in der Staatslehre der frühen Neuzeit, Göttingen 1966, pp. 337-417, on Althusius pp. 425-500; Notker Hammerstein, Comment, in: idem (ed.), Staatslehre der frühen Neuzeit, Frankfurt 1995, pp. 1011-1210, pp. 1074-7; on the framework of practical politics Christine Rolle, Das zweite Reichsregiment, Köln 1996; Albrecht Luttenberger, Kurfürsten, Kaiser und Reich. Politische Führung und Friedenssicherung unter Ferdinand I und Maximilian II, Mainz 1994; on Althusius’ reception during the struggle between the Bohemian estates and the House of Austria see Pavel Stranski, De Republica Bohemiensis, 1634; Menk, “Althusius”, pp. 290-294.

[13] Schubert, Reichstage, 65-84; Weber, Prudentia gubernatoria, passim. It is important to note that the consolidation of jurisdictions involved similar processes for the territories of the imperial estates and the manors of some of the territorial estates, see the essays on Bohemia and Silesia in Michael Stolleis (ed.), Policey im Europa der Frühen Neuzeit, Frankfurt 1996.

[14] See for instance Althusius, Politica c I 36 on “concordia”, c XIX 18 on representatio, or c XIX 23 on “symmetria”.

[15] This difference was, of course, by no means apparent already to fifteen and indeed many early sixteen century contemporaries, who described both England and the Empire in similar terms, see J.H. Burns, Lordship, Kingship and Empire. The idea of monarchy, 1400-1525, Oxford 1992, pp. 40-95.

[16] George Lawsons’ Politica applies the model of double sovereignty to English theory of parliamentary sovereignty. Julian Franklin, John Locke and the Theory of Sovereignty, Cambridge, 1978, mentions Besold as an important source of this model but stressed Lawson to be «avowedly indebted to Althusius» (p. 69). Conal Condren, “Resistance and Sovereignty in Lawson’s Politica”, Historical Journal 24 (1981), pp. 673-81 and idem, George Lawson’s Politica and the English Revolution, Cambridge 1989, pp. 51-53 questioned that claim and stressed Besold and a number of other authors, but talks of «Lawson’s Althusian-besoldian terminology» (p. 54). Althusius was actually a propagator of single sovereignty, resting with the populus, see Politica c IX 23, insisting that double sovereignty leads to conflicts between the two sources of sovereignty; Schubert, Reichstage, 506-8; Franklin, “Mixed Constitution”, pp. 312-3; to Lawson, Politica, while maiestas realis rests in the people, maiestas personalis is allocated to the magistratus summus to Lawson Parliament, made up simultaneously of king, lords and commons. That construction necessarily begged the question of who was going to act on behalf of the people. See on this issue of productive misconception by intellectual transferal Robert v. Friedeburg, Widerstandsrecht und Konfessionskonflikt: Notwehr und Gemeiner Mann im deutsch-britischen Vergleich, Berlin 1999.

[17] Franklin, Locke; Franklin, “Mixed constitution”, with a slightly different emphasis.

[18] Condren, George Lawson, pp.49-61, 71-4, 87-93.

[19] Stolleis, Öffentliches Recht, pp. 106-108, Dieter Grimm, Deutsche Verfassungsgeschichte 1776-1866, Frankfurt 1988, pp. 60-231, Hofmann, Repräsentation, pp. 390-460; see on this issue most recently the articles in Luise Schom Schütte (ed.), Strukturen politischen Denkens in der frühen Neuzeut, München 2000.

[20] Otto von Gierke, Deutsches Genossenschaftsrecht, 4 vols, Berlin 1868-1913: While vol. 2, Breslau 1873,primarily distinguishes “older German law” (I st chpt.), Vol, 3, Berlin 1881, bears brunt of the argument. It describes a medieval theory of popular sovereignty, based on a contractual relation of the sovereign people and highest magistrate to be found in the works of Leopold von Babenberg, Marsilius von Padua and Nicolaus von Cues, influencing conciliarism and preparing for the “representative constitutional state” (pp.577-95). That is going to be superseded by the legislation of territorial absolutism (pp. 765-790), replacing e.g. German medieval corporate town management by the establishment of “Obrigkeit” (p.791).

[21] Recent evaluations of research: Michael Stolleis, Review Friedrich, Zeitschrift für historische Forschung, 4 (1977), pp 364-6; idem; Öffentliches Recht, pp. 1068; Horst Dreitzel, “Neues über Althusius”, Ius Commune 16 (1989), pp. 276-302; idem, Review Hüglin, Zeitschrift für historische Forschung, 22 (1995), pp. 567-70.

[22] To 1620 in nearly every major German university at least one Politica did appear, see Dreitzel, Aristotelismus, pp. 411-4; idem, “Die Staatsräson und die Krise des politischen Aristotelismus: Zur Entwicklung der politischen Philosophie in Deutschland im 17. Jahrhundert”, A. Enzo Baldini (ed.), Aristotelismo Politico e Ragion di Stato, Florence 1995, pp. 129-56; Stolleis, Öffentliches Recht, p. 111; Weber, Prudentia, pp. 9-89, e.g. Arnold Clapmarius (1574-1604),Altdorf, De arcanis rerum publicarum libri sex, 1605; Henning Arnisaeus (1575?-1632),Helmstedt, Doctrina politica in genuinam methodum, quae est aristotelis, 1606; Adam Contzen, Mainz, Politicorum libridecem, 1620; Dietrich Reinkingk, Tractatus de regimine saeculari et ecclesiastica, 1619; Johannes Limnaeus, Juris publici Imperii Romano-Germanici, 1619-34; Bartholomaeus Keckermann, Systema politica, 1607; Lambertus Danaeus, Politices Christianae Libri Septem, 1596; Hermann Kirchner, Res publica, Marburg l608.

[23] Of his Politica 20 Greek and nine Latin editions appeared; see Stolleis, Öffentliches Recht, pp.825; Martin Mulsow, “Die wahre peripatetische Philosophie in Deutschland, Helwig Schmidt-Glinzer (ed.), Fördern und Bewahren, Wiesbaden 1996, pp 49-78; Martin Brecht, “Die reformatorische Kirche in Melanchthons ekklesiologischen Reden”; Humanismus und Wittenberger Reformation, ed, Michael Beyer et. al., Leipzig 1997, pp. 297-311; Dreitzel, Arnisaeus, pp 967; on England see John Case, Sphaera Civitatis, Oxford 1586.

[24] Even this cautious attempt at definition holds not true for Amisaeus’ PoIitica – despite its subtitle stressing Aristotelian methodology – see Dreitzel, Arnisaeus, pp. 174-5.

[25] Hammerstein, “Comment”, pp.  1011-1078.

[26] E.g. the forced recatholisation of Würzburg, the fruitless efforts to defend protestantism in areas surrounded by Catholic imperial estates (1575-76) and the struggle for the protestant administration of Magdeburg, to name but a few, see recently Dietrich Kratsch, Justiz Religion – Politik, Tübingen 1990; Eike Wolgast, Hochstift und Reformation, Stuttgart 1995.

[27] Jean Bodin, Six livres de la république, 1576, latin edition 1586, see Salmon, “Legacy”, pp. 506-14; Hans Ulrich Scupium, “Gemeinsamkeiten und Unterschiede der Theorien von Staat und Gesellschaft des Johannes Althusius und des Jean Bodin”, in: Dahm, Althusius, pp. 301-11.

[28] E.g., the conception of maiestas realis and personalis was first conceived bu Hermann Kirchner (1562-1620), Res Publica, Marburg 1608; see Thomas Klein, “Conservatio Reipublicae per bonam educationem – Leben und Werk Hermann Kirchners (1562-1620)”, Walter Heinemeyer et al. (eds.), Academia Marburgensis, Marburg 1977, pp. 181-230, pp. 212-18 on the impact of the contemporary struggle between the imperial estates of Reformed Hesse-Cassel – for whom Marburg university-based Kirchner wrote – and Lutheran Hesse-Darmstad over the Upperian-Hessian inheritance. Since before the Imperial aulic court, scholars from Marburg university insisted on the shared sovereignty – maiestas realis and maiestas personalis – that would justify the responsibility of the Imperial Chamber Court jurisdiction for the case in question.

[29] Topics included matters such as dealing with religious minorities, the printing press, schools, taxes, coinage, the economy and so on, see Weber, Prudentia. Note that none of these issues can be directly related to what has been called the rise of the modern monarchy with regard to England or France. Only the middling and small jurisdictions of the imperial estates provided the economy of scale to actually engage in the kind of detailed regulation of economy and society so typical for the advice of the politica.

[30] Luise Schorn Schütte (ed.), Strukturen des politischen Denkens in der frühen Neuzeit, München 2000 (forthcoming).

[31] Since most contemporaries were influenced by some aspect of the Aristotelian renaissance yet all combined a number of other issues as well useful for classification, the denominator “Neo-Aristotelianism” shifts from embracing a whole ot to very few tracts. Thus Dreitzel, “Krise des Aristotelismus”, deals with many of the “politicas” quoted above as being inflicted by the crisis of Althusius’ Politica (Scupin, “Bodin und Althusius”, disagrees with that denomination), “Political Aristotelians” such as Arnisaeus, “Thomist-Aristotelian” tracts by Catholics like Contzen, tracts orientated towards the Lutheran doctrine of three estates like Reinkingk and authors interested simply in the development of imperial public law. To Stolleis, Öffentliches Recht, p. 221-4, Limnaeus is such an author.

[32] E.g. Arnold Clapmarius, De Arcanis rerumpublicarum liberi sex, 1605; Stolleis, Öffentliches Recht, pp. 98-101.

[33] Horsta Dreitzel, Absolutismus und ständische Verfassung, Mainz 1992, pp. 23-35 offers as a compromise six roots or overlapping sets of influences characterising the Politica; a debate among reformed monarchomachists after the Bartolomew day’s massacre in 1572; b., the Dutch debate justifying the rebellion against Spain; c, Spanish legal philosophy concerning both Roman Law concepts of the corporation and its representation and the further development of the notion of  natural law; d., aspects of presbyterian ecclesiology; e., Bodin’s notion of sovereignty; f., practical advice on achieving stability borrowed from Lipsius.

[34] Heinz Angermeier, Königtum und Landfriede im deutchen Spätmittelalter, München 1966; idem Die Reichsreform 1410-1555, München 1984; on the interaction of imperial and constitutional law and confessionalisation see Gerard Müller, “Bündnis und Bekenntnis. Zum Verhältnis von Glaube und Politik im deutschen Luthertum des 16. Jahrhunderts”. Martin Brecht, Reinhard Schwarz (ed.), __Bekenntnis und Einheit der Kirche. Studien zum Konkordienbuch, pp. 23-43; and summarizing the constitutionell and religious development Heinz Shilling, Die Konfessionalisierung im Reich, Historische Zeitschrift 246 (1988), pp. 1-45; idem., Aufbruch und Krise, Berlin 1988.

[35] Henning Arnisaeus, De Republica seu relactionis politicae libri duo, Frankfurt 1615, cap. I, s. 1 n. 14: «Perfecta igitur definitio reipublicae est, quod sit ordo civitatis, tum aliorum imperium, tum paecipue summae potestatis, a quo profluit regimen per medios magistratus in universos subditos», see Dreitzel, Arnisaeus, pp. 171-4, on his break with the received tradition by failing to mention the moral mission of the state.

[36] Christian Liebenthal, Collegium Politicum, Amsterdam 1652, VI, 185, quoted Althusius for «res publica constat ex imperantibus & obedientibus», probably Althusius, Politica, C1, 36: «…ita conventus & societas in Rep. imperantium & obedientium se habet…», an interesting place because Althusius rather uses in terms “consociatia publica particolaris” (for civitas) and civitas or regnum or consociatia publica universalis (for res publica).

[37] Althusius chapter on democracy (XXXIX) is part of his appendix of the special subject treated in the last chapters. He stated his view on popular participation much earlier. To him, any kind of election by the common men is riddled with danger for the unity of the body politic and will trigger rebellion and sedition: Althusius, XVIII, 56: «Esset enim difficilinum…. suffragia omnium civium, & eorum, qui alicujus Reip partes sunt, a singulis exigere, idcirco convenit, plebis multitudinem per ejus optimates negotia publica  ita expedire, ut absque tumultibus & seditionibus tuto a Repub. negotia illius peragantur».

[38] E.g. on the need for harmony Althusius, Politica, C1, 36.

[39] See Weber, Prudentia, pp. 321-57.

[40] Weber, Prudentia, pp. 333; Stolleis, Öffentliches Recht, p. 84.

[41] Shubert, Reichstage, pp. 305-22; Kratsch, Justiz, pp. 212-6.

[42] Stolleis, Öffentliches Recht, pp. 154-210, and in particular his verdict on the result of 1648, p. 227: «Alle auf Modernisierung drängenden Kräfte verlagerten sich deshalb künftig in die größeren Territorialstaaten».

[43] Dreitzel, “Krise”, pp. 149-50.

[44] Horst Dreitzel, “Das deutsche Staatsdenken in der frühen Neuzeit”, Neue Politische Literatur, 16 (1971), pp. 17-42.

[45] Dreitzel Arnisaeus, pp. 427-8.

[46] Of course, both allow for kinds of law being subject to such lawmaking, but expect other parts of the law, such as fundamental law or natural law to be non-volatile, see on this crucial distinction to later writers such as Hobbes and Locke already Ernst Troeltch, Die Soziallehren der christlichen Kirchen, Tübingen 19233 , p. 691 on the Aristotelian basis of society not being voluntarily made by contract; thus, the treatment of Althusius by Howell A. Lloyd, “Constitutionalism”, J.H. Burns (ed.); The Cambridge History of Political Thought 1450-1700, Cambridge 1991, pp. 254-292, is altogether fitting; on the crucial issue of the lack of innate ideas and the subsequent problem of a lack of a moral basis for the state see Ian Harris, The mind of John Locke, Cambridge 1994.

[47] Dreitzel, “Krise”, p. 150.

[48] Dreitzel, Arnisaeus, pp. 336-57: The civitas provides the populus with a  sphere of private property rights, but these rights do not carry public power. The restrictions imposed on the monarch within the system, natural law and fundamental law, are primarily left to protect these private rights, see Dreitzel, Arnisaeus, pp. 202-26.

[49] Commentarii in VIII libro Aristotelis de optimo statu civitatis; Florence 1576, p. 209 defines «Est autem res publica ordo civitatis, ceterorumque  magistratuum, et maxime illius, qui summam protestatem habet», see Dreitzel, Arnisaeus, p. 344; Wolfgang Mager, “Res Publica und Bürger” Res Publica. Bürgerschaft in Stadt und Staat, Berlin 1988, pp. 67-94, p. 78; on the underlying notion of the civitas being the materia, being given form by the res publica see Dreitzel, p. 119; Wolfgang Mager, “Republik”, Historisches Wörterbuch der Philosophie, ed Joachim Ritter, Karlfried Gründer, vol. 8, 1984, pp.858-78, p. 867.

[50] Dreitzel, Arnisaeus, p. 230, he remains exempt from jurisdiction, p. 226.

[51] Dreitzel, Arnisaeus, p. 236, 353.

[52] Hofmann, Repräesentation, p. 381, on Chistoph Besold, Dissertatio Politico-Iuridica, 1625, Sectio I Cap I § IV, p. 5f. : «Numquam sane censendum est, totam et universam Rempublicam per principem representari. Caput est, non totum corpus».

[53] Hofmann, Repräesentation, pp. 211, 357-375, 392 on Chistoph Becmann, De Majestate, in Meditationes Politicae XXIV dissertationibus academis expositae, 1672, 89: «Quia nam princeps universos seu rempublicam representat (the formulation indicating representatio  identitatis) eadem non minor erit (against the traditional assumption of conciliarist thought that the universitas assembled is superior to the caput), sed ipsi aequalis: Veluti imago quam speculum repreasentat, prorsus aequalis est faciei extra speculum repraesentare». He argued that by contract a transfer of the power and authority from the populus to the monarch had been established, effecting the representation of the universitatas by that monarch not only as of the chief legal officer, but by being the universitas (p. 375; idem “Althusius”, p. 544. Christian Wolff started to talk about a representation «mandatem quasi more geometrico», see Hofmann, Repräesentation, pp. 164-5.

[54] Althusius, Politica, c V 5: «Politeuma in genere, es ius & potetas communicandi & participandi utilia & necessaria, quae ad corporis constituti vitam a membris consociatis conferentur. Vocari potest jus symbioticum publicum». Althusius’ politeuma resembles in that respect the res publica of  Arnisaeus, see Dreitzel, Arnisaeus, p. 341.

[55] Francis Oakley, Natural Law, Conciliarism and Consent in the Middle Ages, London, 1984; idem, “Nederman, Gerson, Conciliar Theory and Constitutionalism: Sed Contra, History of Political Thought 16 (1995), pp. 1-19; Brian Tierney, Religion, law, and the growth of constitutional thought 1150-1650, Cambridge 1982, pp. 50-78 on Althusius’ debt to these developments.

[56] Hasso Hofmann, “Der spätmittelalterliche Rechtsbegriff der Repräsentation in Reich und Kirche”, Der Staat 27 (1988), pp. 523-45.

[57] Hofmann, Repräsentation, pp. 132-136; Dreitzel, Aristotelismus, pp. 188-93, 188-189; Anthony Black, The Juristic  Origins of Social Contract Theory, History Of Political Thought 14 (1993), pp. 57-76.

[58] Stephanus Junius Brutus, Vindiciae, Contra Tyrannos, ed. George Garnett, Cambridge 1994, Introduction, p. XIX; G. Zimmermann, “Konziliarische Ideen in einer Calvinistichen Streitschrift: Huber languets ‘Vindiciae Contra Tyrannos’”, Zeitschrift der Savigny-Stiftung für Rechtsgeschischte, CV, kan. Abt., 74 (1988), pp. 412-35: suffice to say that Althusius and Arnisaeus alike accepted the existance of private individuals having private property interests, see below, part III on Althusius; Dreitzel, Arnisaeus, pp. 202-26, 336-57.

[59] Mager, “Republik”, pp. 862-3; Hofmann, Althusius, pp. 530-32.

[60] Hofmann, Repräsentation, pp. 211. The «ambivalent understanding of representation» that Condren detects in Lawson’s treatment or real majesty (Lawson, Politica, p. 221) hinges on this distinction. To  Lawson real majesty is on the one hand hand «the whole community» (ibid. p. 221) as opposed to «personal majesty…. fixed in some persons who are trusted with the exercise of it » (ibid. p. 49), and on the other «the people [making use] of such an assembly as a parliament, to alter the former government….» (ibid. p. 48). Lawson, being deprived of a clearcut distinction between parliament representing the people and thus owning maiestas realis or being the supreme magistrate and thus owning maiestas realis shifts between representatio potentatis and representatio identitatis.

[61] Hofmann, Repräsentation, pp. 357-373, Althusius, Politica, c XIX 98 (representatio potetatis): «Gerunt vero & representat hi summi Magistratus personam totius regni, omnium subditorum & Dei, a quo omnis potestas» XVIII, 11 (representatio  identitatis): «Ideo ejusmodi administratores & curatores totum populum representant…. & ministri constituti instar tutoris, gerentes & representantes personam totium populi»; c V 54-55, «Senatus, est virorum collegium …. collegium repraesentat totum populum & totam civitatem».

[62] Hofmann, “Althusius”, pp. 516-18.

[63] The term stems avowedly from Cicero, see Althusius, Politica, c I, 7: «Unde Cicero dixit, populum esse coetum juris consensu & utilitatis communione consociatum».

[64] Hofmann, “Althusius”, pp. 516-18; descriptions such as IX,5: «Membra regni, seu symbioticae universalis consociationis hujus voco, non singulos homines, neque familias …. sed civitates, provincias & regiones…» carry no legal significance of power allocated.

[65] Althusius, Politica, c V, 32-42 on various form of settlements, 42 on the transfer of ius imperium to the city: «Ex sola magistratum summi voluntate civitatis jus constituitur.»

[66] Althusius, Politica, V 10: «Membra universitatis sunt privatae diversaeque consociationes conjugum, familiarum & collegiorum, non singuli cujusque consociationis privatae … sed cives ejusdem universitatis sunt a coeundo, ideo, quod ex privata symbiotica transeuntes, coeunt in unum corpus universitatis.» See below on the meaning of “transitio”; for a critique of interpretations seing Federalism at work in Althusius see Dreitzel, Rev. Hüglin.

[67] The description of democracy is handled only marginally and with distrust in its working, see Hofman, “Althusius”, pp. 520-22; c XXXIX De speciebus summi magistratus, 11, 32: «Polyarchicus magistratus summus est, qui subditis, cum aliis sociis pari vel eodem imperio summo instructus, imperat, & jura majestatis administrat: hoc est, vicissitudo administrationis inter plures communicata», and stresses (33) that in this case just as in the case of monarchy, even «plures administratores hic non habent diversas potestas & imperia … sed omnes conjunctim simul unam supremam potstatem habent», quoting Bodin; in crisis, even the democracy has to give power to a single person to deal with the crisis: (40) «Plane in magnis periculis, manisque calamitatibus Resp. polyarchica nulla ratione melius servari potest, quam si ex communi imperiantium consensu, imperii administratio uni vel alteri commendetur» (alluding to Rome and the establishment of dictators  in tempore necessitatis. Moreover, popular elections suffer from the private interests of the subjects (50): «Populo indistincte electionem dare, periculosum videtur, utpote qui privatis suis affectibus ducitur…», quoting again Bodin. Democracy therefore suffers from the vices of the plebes, (64) «Populare est, mutabiles & temporales esse magistratus, ut evidetur invidia…».

[68] Althusius, c IX, 23-24: «Rex enim populim, non contra populus regem  repraesentat»; c XIX 98: «Gerunt vero & repraesentant hi summi Magistratus personam totius regni, omnium subditorum & Dei, a quo omnis potestas. Gerunt quasi typum divinae potentiae, majestatis, gloriae, imperiae, gloriae, imperii, clementiae, providentiae, curae, protectionis & gubernationis. Ideo in suis titulis, Nos gratia Dei».

[69] Althusius, c XVIII, 49-66, 84-88. (70): «Rex vero, seu summus magistratus, generalem in singulos etiam optimates habet potestatem, majestam & praeeminentiam, a cujus potestate & administratione omnia pendent … (73) Dehinde hi ephori universi quidem magistratu summo sunt superiores».

[70] Elections are mentioned as one of a number of possibilities of establishing magistrates, but for well known reasons one to abstain of if possible, see Althusius, Politica, XVIII, 56: «Esset enim difficilinum … suffragia omnium civium, & eorum, qui alicujus Reip. partes sunt, a singulis exigere, idcirco convenit, plebis multitudinem per ejus optimates negotia publica  ita expedire, ut absque tumultibus & seditionibus tuto a Repub. negotia illius peragantur». The detail allotted to the description of the procedure in elections in the account of a true republican such as James Harrington, Political Works, ed. J.G.A. Pocock, Cambridge, 1977, p. 361-368: «The Manner and Use of the Ballor», stands in marked contrast to Althusius account.

[71] Althusius, Politica, XVIII, 59: «Eliguntur autem & constituuntur ejusmodi Ephori consensu populi, tributim, centuriutim, curiatim…»; see Shubert, Reichstage, 410-12 on the model of the imperial estates being the Empire; Hofmann, “Althusius”, pp. 517-18.

[72] Althusius, Politica, V, 52-55; Hofmann, “Althusius”, p. 527.

[73] Hofman, “Althusius”, p. 530: «vom Hoheitsrecht geprägte Charakter der staatsrechtlichen Beispiele».

[74] «… der sozialwissenschaflichen Theorie des genossenchattlichen Aufbaus des Gemeinwesens», see Hofmann, “Althusius”, p. 533.

[75] Hofmann, “Althusius”.

[76] Stolleis, Öffentliches Recht, p. 108; his lack of interest in juridic devices is stressed by new evidence found in a hitherto unpublished disputation by Althusius of 1602, immediately before the first edition of the Politica, discovered in Wolffenbüttel, see Michel Stolleis, “De Regno Recte Instituendo et Administrando”, Giuseppe Duso et. al., Su una sconosciuta ‘Disputatio’ di Althusius (Quaderni Fiorentini 25, 1996), pp. 19-46, p. 20.

[77] Indeed, this is a similarity to Bodin hitherto rarely recognized, see Goyard-Fabre, Bodin, pp. 259-66.

[78] Althusius, Politica, c I 30: « Finis politicae, es usus vitae commodae, utilis & felicis, atque salutis communis».

[79] Michael Behnen, “Herrscherbild und Herrschaftstechnik in der Politica des Johannes Althusius, Zeitschrift für historische Forschung 11 (1984), pp. 417-72, quotes p. 422 Althusius, Politica V, 4 («Hommines congregati sine jure symbiotico, sunt turba, coetus, multitudo, congregatio, populus, gens») and hints towards Cicero, De re publica, Liber primus, 25, and his definition of «coetus multiduninis juris consensu et utilitate communione sociatus». It is important, however, to remember that Cicero has Africanus to define: «Est igitur, res publica res populi, populus autem non omnis hominum coetus quoquo modo congregatus, sed coetus multiduninis…», i.e., that this is Ciceros definition of the res publica, while Althusius transfers it to a definition of the consociatio and the ius symbioticum.

[80] See Richard Tuck, Philosophy and Government 1572-1651, Cambridge 1993, p. 158 accordingly criticising Gierke’s interpretation.

[81] Behnen, “Herrscherbild”, p. 423.

[82] Ibid., 426; Giovanni Botero, Della Ragion di Stato, Venice 1589; Clapmarius, De arcanis.

[83] Behnen, “Herrscherbild”, p. 425; Stolleis, Öffentliches Recht, p. 108.

[84] On the actual practise of pious ecclesiastical discipline and the enforcement of social order in German towns and small territories see Monike Hagemeier, Predigt und Policey. Der gesellschaftspolitische Diskurs zwischen Kirche un Obrigkeit in Ulm 1614-1639, Baden-Baden 1989; Heinz Shilling (ed.), Kirhenzucht und Sozialdisziplinierung im frühneuzeitlichen Europa, Berlin 1994.

[85] “Natural” in the sense of contemporary scholastic teaching of natural law.

[86] Althusius, Politica, c 31, 8.

[87] Althusius, Politica, XXXI, 16. A positive evaluation of the wealth in cities such as Robert Burton’s The Anathomy of  Melancholy, (1621), ed Thomas C. Faulkner et al., Oxford 1989, p. 344-55 is anathema to this concept; see Ruth A. Fox, The tangled chain, Berkley 1976; Conal Condren, The Language of Politics in Seventeenth Century England, New York 1994, pp. 95-99 on the implications of talking about cities.

[88] Althusius, Politica c XXXI, 63.

[89] See on this Althusius, Politica, c XXXII as well.

[90] «Membra universitas sunt privatae diversaeque consociationes conjugum, familiarum & collegiorum, non singuli cujusque consociationis privatae, qui hic non conjuges, cognaci, collegaeve, sed cives ejusde universitatis sunt a coendo, ideo, quod ex privata symbiotica transeuntes, coeunt in unum corpus universitatis», see Althusius, Politica, V, De consociatione universitatis, p. 10.

[91] Althusius, Politica, C1, 36: «Deinde conservatio & duratio omnium rerum consistit in illa ordinationis, & subjectionis concordia. Nam sicut ex diversi toni fidibus, ad symmetriam intensis, sonus dulcissimus oritur & melodia suavis, gravibus, mediis & acutis conjunctis: ita conventus & societas in Rep. imperiantium & obedientium se habet, & ex divitum, pauperum, artificum, sedentatiorum & id genus diversorum graduum personarum statu, quam suavissima oritur & conveniens harmonia; & si ad concentum reducantur, efficitur concordia laudabilis, felix & pene divina, & durabilior. Quod si vero omnes aequales, singulique pro arbitrio vellent alios regere, & alii recusarent regi, hinc facilis esset discordia, & discordia dissolutio societatis; Nullus esset gradus virtutis, nullus meritum, & sequeretur, ut ipsa aequalitas esset summa inacqualitas… Hinc inter signa irae divinae refertur, quando haec imperiantium & obtemperatium symmetria, cjusque ministri, & duces non sunt». The problem of order in a society not only characterized by human vices. Rather, both inequality among men and the distribution of labour with its concomitant problems is reflected when concluding that lack of government and harmony makes «ut ipsa aequalitas esset summa inaequalitas».

[92] Althusius, Politica, c XIX: «De  regni, sive universalis imperii, commissione ….».

[93] Althusius, Politica, c XIX, 18 «De  constitutione summi magistratus, & de ejusmodi pacto & contractu inter magistratum summum, ephoros, populum totum corporum consociatorum repraesentantes».

[94] Althusius, Politica, c XIX,  p. 22.

[95] Althusius, Politica, XIX, 23: «Rationes evidentes hujus constitutionis summi magistratus plurimae sunt. Nam hanc magistratus summi constitutionem sua sit utilitas & necessitas Reip. summa. Nam teste Cic. lib. 3 de legib. nihil tam aptum es ab jus conditionemque naturae, quam imperium, sine quo nec domus ulla, nec civitas, neque gens,  nec hominum universum genus stare, nec rerum natura ommnis, nec ipse mundus potest. In apibus (he uses here even the  apex, used as well for the tiara of the asiatic princes stressing superiour power. R.v.F.) princeps & rex unus est, quo presente totum agmen tenetur quo amisso dilabitur (the most telling methaphor lacking him means immedeate decay), migratque ad alios, & sine rege esse non potest Si navis sine nauclero, bellum sine duce, corpus sine anima regi non potest … Symmetria etiam in civili hac societate necessaria, quae non nisi ex diversitate imperantium & obtemperantium Nam ut ait Pet. Greg. quemadmodum ex diversi tonifidibus ad symmetriam intensis, somus dulcissimus oritur & melodia suavis, gravibus mediis conjunctis, ita. in Rep. ex imperantium & obedientíurn, divitum, pauperum, artificium, sedentariorum & diversum graduum, personarum, consensu & concordia … & bona harmonia nasci non potest ex chordis unius toni, sic nec Resp. consistere posset, si omnes essent aequales, qui mutuo contenderent sibi obsequi, aut inservire, aut singuli pro arbitio vellent alios regere, & alii recusarent regi: undo discordia, ex qua dissolutio societatis…. Porro constitutio seu pactum, quo corporum consociatorum consensu ab ephoris  magistratus summus constituitur, duo habet membra. Prius est de commissione regni administrationis Reip. seu universalis consociationis. Alterum de obsequiorum & obedientiae  promissione… 24 Commissione regni est, qua ab ephoris  nomine  populi seu  corporis consociati, regni administratio».

[96] Althusius, Politica, c XIX, 31, «Populus igitur hic stipulatur, seu interrogat vel administrandi & imperandi mandatum dat  per ephorum….».

[97] Jürgen Dennert, “Einleitung”, idem  (ed.),  Beza, Brutus, Hotman,  Wiesbaden 1968, pp. IX-X on Gierke subsuming Althusius under Barclay’s term; Scupin, “Althusius und Bodin”, p. 301 denying the usefulness of this denomination; Dreitzel, Absolutismus, pp. 23-25 cautiously defends it.

[98] Burns, Lordship, p. 153; Francis Oakley, “On the road from Constanze to 1688: The political thought of John Major and George Buchanan” in: Natural Law, quoting contemporary critique of John of Paris and others; J. H. Burns, The true Law of Kingship. Concepts of Monarchy in Early Modern Scotland; Oxford 1996, pp 222-53 on the influence of Barclay.

[99] See Dreitzel, Arnisaeus,  p. 220 and Mager “Res Publica”, p. 267 on Bodin’s and Arnisaeus’ notions of tyranny.

[100] See Robert v. Friedeburg, Welche Wegscheide in die Neuzeit? Widerstandsrecht, “Gemeiner Mann” und konfessioneller Landespatriotismus zwischen “Münster” und “Magdeburg”, in Historische Zeitschrift 275 (1999), p. 1-56.

[101] Constitutionalism informed by Aristotelianism and monarchy were by no means opposing concepts, e.g. Henry VIII on his relation to parliament (John Guy, Tudor England, Oxford 1988, p. 12); on the ambivalence of Richard Hooker’s claims (The Works of Richard Hooker, ed. John Keble, New York 18877 1970 repr.) see R.A. Houk, “Introduction”, in: idem (ed.), Hooker’s Ecclesiastical Polity Book VIII, New York 1931, p. 98 claiming that his sixth and eighth Book of Ecclesiastical Polity was only printed in 1648 rather than immediately following the first four books, because William Cecil, Baron Burghley, «may have found Hooker too much of a republican for his liking»; J.P. Sommerville, “Richard Hooker, Hadrian Saravia and the advent of the Divine Rights of Kings, History of Political Thought 4 (1983), pp. 229-245: Tuck, Philosophy and Government, pp. 146-153 on similarities the English Aristotelian John Case. On the process of  mutual labelling see Burns, Lordship, 153; Peter Lake, “Retrospective: Wentworth’s political world in revisionist and post-revisionist perspective”, J.F. Merritt (ed.) The Political World of Thomas Wentworth, Earl of Strafford, 1621-1641, Cambridge 1996, p. 252-283.

[102] See Weber, Prudentia. It is, however, dubious whether subjects in rebellion in midcentury middle-Europe did fail to make us of Althusius for this reason. The Politica was probably to learned and voluminous anyway to be of help to them, see. e.g. Herman Rebel, Peasant Classes. The Bureaucratization of Property and Family Relations under Early Habsurg Absolutism, 1511-1636, Princeton 1983; not even the most conspiracious rebellion at midcentury, the Swiss Peasant War, did not make use of him.

[103] See Robert v Friedeburg, From collective representation to the right of individual defence: James Steuart’s Ius Populi Vindicatum and the use of Johannes Althusius’ Politica in Restoration Scotland, in: History of European Ideas 24 (1998), S. 19-42. On the importance of Platon and Pythagoras for Bodin’s concept of harmony see Goyard-Fabre, Bodin, pp. 259-66; on other issues see for different emphases Stolleis, Öffentliches Recht, p. 106; Horst Dreitzel, “Neues über Althusius”, in: Ius Commune XVI (1989), pp. 275-302, 276, 287.

[1] This article grew out of debates at the conference on Early Modern Thought at Potsdam University in December 1996, at the Institute for Reformation Studies, University of St. Andrews, where I pursued research as a Cameron Fellow on the reception of Althusius in Scotland during February to June 1997 and at the second EFS-meeting on Republicanism at Perugia in May 1997. I do thank all participants for their stimulating advice, but particulary Horst Dreitzel, Wolfgang Mager and Andrew Pettegrew.

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