Rafał Wojciechowski

European Legal History

Modernity till the French Revolution

AbsolutismTheoretical foundations were created by such thinkers

as:Niccolò Machiavelli (1469-1527) developed the theory

of the cyclical collapse and growth of political structures. In his opinion, during the regeneration of the state its political order should be based on the absolute authority of the ruler, as this is the only way to reverse its decay.

Jean Bodin (1530-1596) viewed sovereignty as the fundamental characteristic of the state. It is to be individuable and permanent. Its primarily expression is the monopoly of the state on establishing and enforcing the law.

Martin Luter (1483-1546) believed that since all power is derived from God, obedience to authority is a Christian duty, even when the ruler is a tyrant.

Absolutism 2The absolute monarchy spread the idea of the state as

a public good, a sovereign legal person. There was no longer a place for patrimonial ideas, the state as the property of the ruler.

The monarch was the highest organ of the state. His power was unlimited and subjected to no external control.

Theoretically, the monarch was only subject to heavenly law, which in time came to be viewed as natural law.

There was no absolute monarchy which fully realized the idea of unlimited monarchial power.

In France, which was the leading absolute state, the king was subjected to the so-called fundamental laws of the monarchy.

Absolutism 3

A particular characteristic of organs of the monarchy in the area of administration was collegiality. It existed at both the central and territorial levels.

It resulted from the belief that limiting individual decision-making promoted honesty and fairness in resolving matters.

In addition, collegial organs protected the monarch from excessive individual ambitions among the ruling elite.

Collegiality had its flaws as well: it was slow, inefficnet and led to disputes over competencies.

Absolutism 4In France, the Royal Council became a permanent body at

the beginning of the 16th century. Membership was based on descendency and nobility (princes, high-ranking civil servants), privilege (titled counsellors) and nomination (counsellors and referees).

In the middile of the 17th century, during the reign of Louis the 14th, it ceased to have members based on descendency and nobility (except for the chancellor), and the privileges of titled counsellors were also eliminated. Their places were taken by new central civil servants: the general financial controller and secretaries of state.

The Council was divided into four sections: Council of State Council of Messages Council of Finances Privy Council

Absolutism 5The Council of State (High Council) was composed of

the king and some of the most important ministers. It handled foreign policy and main domestic policy issues.

The Council of Messages met under the leadership of the king, and contained the members of the Council of State plus other ministers. It dealt with internal issues and ruled in difficult administrative cases.

The Council of Finances, in which the main role was played by the general controller, dealt with the state’s most important financial issues, such as taxes, and divided them into administrative districts.

Absolutism 6The Privy Council met under the leadership of the

chancellor and contained 4 secretaries of state, 30 counsellors representing each of the estates, and several referees. It performed judicial functions as:

• The court of cassation, quaching verdicts of other courts issued in violation of substantive or procedural law

• An administrative court, hearing disputes between the king’s subjects and administrative authorities

• A court of competence – resolving disputes about the jurisdiction of courts between organs of the highest instance.

Absolutism 7During the period of absolutism in France, six ministerial

offices came into being, which were exercised by:The chancellor, the general controller of finances, and

four secretaries of state.The Chancellor remained the sole crown servant which

continued to perform its functions. His competencies included: Oversight of the activities of the royal chancellery General oversight over courts Coordination of the work of the sections of the Royal

Council Chairing the Privy Council

The general controller of finances exercised executive oversight of financial matters and over the economic activity of the state.

Absolutism 8The four secretaries of state absed their offices on

those of the old notaries of the royal chancellery, whom the rulers entrusted with the most important activities.

With time, each of them was entrusted with rule over one of the regions into which France was divided. Geographic criteria also led to their responsibility for foreign policy in respect of neighbouring states.

At the close of the 16th century their authority was divided according to substantive criteria.

Ministries were thus created:o Foreign affairs;o War;o Maritime affairs;o Royal court.

Absolutism 9

A ministry of interior was not created. The old system of administration based on four regions was maintained.

The king generally selected as secretary of state an individual from the administrative aristocracy (nobles de la robe) or from among rich urbanites, which was associated with awarding heriditary nobility.

Each minister, as an advisor to the king, was responsible only before him.

Only in extremely exceptional circumstances were the most outstanding ministers named prime minister (e.g. Richelieu, Mazarini)

Absolutism 10

Absolute monarchs placed great importance on issues of local governance.

The local administrative apparatus was built on the principles of:

Officialism Hierarchical discipline Nomination of civil servants

In early-modern France, local government was based on the Middle Ages division between bailiwicks and senechals.

Bailiffs slowly lost more and more of their athorities, and at the end of the 17th century became titular officers.

Absolutism 11At the turn of the 16th century, the primary organs of

local administration were governors. They were selected from among military leaders,

nominated in border provinces. With time they were also established in the interior of the country.

They assumed extensive judicial and administrative authority from the bailiffs.

They were primarily from the aristocracy, which is why they quickly became a destabilising force in the state.

To counteract this tendency, Louis XIV limited their term of office to 3 years, and they were only allowed to travel to their privinces with the permission of the ruler. As a rule, they were to be at the court for the entire time.

Absolutism 12The rights of governors in the privinces were

transfered to intendants. The king nominated them from among the referees of the Privy Council.

They exercised their authority in specially-created general districts; around 30 existed at the time of the revolution.

Intendants were primarily recruited from among the administrative nobility and rich urbanites.

Their competencies included administrative and financial matters, as well as oversight and personal involvement in the administration of justice.

Intendants were directly subordinated to the Royal Coucil.

They had permanent offices for assistance, and personally nominated lower-level subdelegates.

Enlightened absolutismIn the 18th century, the ideology of the Enlightenment

showed the negative aspects of classical absolutism. Some European rules adopted some of the ideas of that ideology, as long as they did not run contrary to the essence of absoltue power.

Some European countries saw a range of social, economic and administrative reforms implemented.

Enlightened absolutism reached its peak in Central and Eastern Europe, particularly in such countries as Prussia and Austria.

In the West, either classic absolutism remained, such as in France and Spain, or parliamentary monarchy developed, such as in England.

In the East, particularly Russia, while rulers did flirt with Enlightenment philosophies, they did not implement enlightned absolutism.

Enlightened absolutism 2Rulers introducing enlightened absolutism in their

countries no longer emphasized the godly origins of their authority, but maintained its unlimited scope.

The monarchial authority in these states was then expressed in rational terms, and monarchs began to view themselves as servants of the state.

Ruling in the service of the interest of the state, they held their highest obligation to be the good of the people, and strived to ensure their happiness and prosperity.

The monarch’s duties became: to establish the law, to govern the state in the name of its inhabitants, to support economic growth and (a clear novelty) to ensure real religious tolerance.

Rulers scaled back the royal court’s opulence and provided continuing support to education and science.

Enlightened absolutism 3Monarchs implementing enlightened absolutism or

elements of it achieved a level of ongoing and personal control over the state apparatus which had no equal in classical absolutism.

The centralism of Prussia and Austria from that period has no equal in modern times.

The greatest advances were made by enlightened absolutism in Prussia under the reign of Fredrick William I and his son Frederick II, whom historians often call the greatest bureaucrat of the century.

Frederick II ruled through cabinet orders and marginalia (decisions scribbled in the margins of letters), and the civil servants under him became passive vassals of his will.

Enlightened absolutism 4

In Austria, the embodiment of the enlightened monarchy was Joseph II, son of the emperess Maria Theresa. This ruler worked hard to create a centralized, humanitarian welfare state.

The majority of his reforms were either revooked or limited by his successors.

Some elements of enlightened absolutism were introduced by Catherine II. She was in close contact with philosophers representing the ideas of the enlightenment, particularly Voltaire.

She did not implement social reforms, but only improved the organization of the state based on the Prussian model (this is no surprise considering she was from Szczecin).

Enlightened absolutism 5

In Prussia, the leading role in central administration was played by the Privy Council, which was drawn from the Brandenburg tradition. It dealt with foreign policy, the army and finances. Its functioning depended entirely on the will of the elector.

At the end of the 17th century, central organs began to emerge, including:

The General Directorate of Finances, which managed the royal domains, post, customs, forests, etc.

The General War Commisariat, which was responsible for internal government, quartermastering, etd.

Enlightened absolutism 6In 1723, the General Directorate of Finances and the

General Commisariat of War were fused into the General Directorate (Generaldirektorium).

It was formally led by the king, who was often deputized by one of his ministers.

This organ was initially composed of 4 departments, while in 1768 it grew to 7.

Ministers were at the heads of departments. Their authority was initially based on geographical and substantive criteria, and from the reforms of Frederick II exclusively on substantive criteria.

In this manner the department of mills and mines, as well as the department of administrative affairs and military supply were created.

Enlightened absolutism 7

Other departments: Cabinet Ministry of Foreign Affairs, formed in 1728.

It was personally directed by the king. Ministry of Justice, formed in 1737 Specialised central agencies, such as:

o Secred Military Chancelleryo General Post Office

Enlightened absolutism 8

During the reign of Frederick Wilhelm (known as the Great Elector), the state was divided into provinces.

At the same time, state organs known as national governments were in operation, but their role was systematically reduced.

New institutions also appeared: war commissars and chamber offices for managing estates, forests and regalia.

In the 17th century the division of provinces into counties began, first in Brandenburg, later spreading to the rest of the country.

They were headed by civil servants known as Landrats.

Enlightened absolutism 9In 1713-1723 Frederick William I devided the provinces

into districts, named departments of the chamber. Authority in these belonged to collegial bodies known as chambers of war and of estates.

One chamber operated in every province, with two in Eastern Prussia. They were lead by presidents who were directly subordinated to Berlin.

Their competencies included such matters as: Military (supplies and quartering, recruitment,

quartermastery, etc.) General administration Police Economic Judicial

Enlightened absolutism 10

The lowest ranking unit in the territorial division of Prussia in the 18th century was the county, with the Landrat at its head.

The Landrat was appointed by the king from among candidates nominated by the county assembly.

This organ formed the latest in Eastern Prussia (1753).Royal cities were ruled by tax collectors, who also

controlled city authorities in the form of appointed magistrates.

Administration and judicial powers were exercised in villiages by their lords.

Enlightened absolutism 11In Prussia, the personal ruling of Frederick II lead to

the king getting personally involved in many affairs he could have left to his servants. As a result, one speaks of cabinet governments, as many types of matters were personally decided by the king.

Once a year, Potsdam was the seat of a meeting of the entire royal cabinet. The state budget was the focus of the sessions.

Civil servants were recruited from among Junker families, yet from the times of Frederick II they were joined by growing numbers of urbanites.

A career ladder was established.In 1763, compulsory education was introduced in

Prussia, which had many consequences for that country and all of Europe.

Parliamentary-cabinet governments

In 18th-century England the primary role was played by the cabinet. It was composed of ministers appointed by the king at the request of the prime minister, who came from the party in possession of a parliamentary majority.

Ministers directed specific scopes of state activity. The government included around 100 individuals of ministerial status, but with very different titles.

A special hierarchy existed within the government, regulated by statute until the 20th century.

Only some ministers, depending on their rank, were part of cabinet.

Already in the 17th century a common opinion arouse that a minister advising the king and countersigning his acts must bear responsibility for them.

Parliamentary-cabinet governments 2

The 1701 Act of Succession established the principle of the countersigning minister’s responsibility and the king’s absence of responsibility.

As a result of this responsibility, a minister could refuse to sign a royal act, and the king lost the possibility to force him to sign it.

The minister was individually responsible only for breaking the law.

Political responsibility was realized by way of joint responsibility of the entire cabinet. It took shape in the period 1711-1782. The absence of trust in a minister led to a vote of no confidence in the government. This was a form of parliamentary responsibility.

Enlightenment scholarship concerning the state

In the 18th century, many thinkers summarized and deepened previous doctrines referring to the state and state administration, and also added new elements to it.

The most beneficial of those for the development of the state and its political order was the thought of Charles de Montesquieu, which he wrote down in The Spirit of the Laws (1748).

His deliberations mainly concerned France, and the method also included comparative elements with the orders of other countries.

In addition, Montesquieu drew extensively on the previous work of other theorists of the state.

Enlightenment scholarship concerning the state 2

Montesquieu gave three fundamental types of the state:

- republic;- despotism;- monarchy.The author supported the last of them, as a guarantee

of moderate governments with respect for the law. He was an admirer of the English political order, on which he based his famous principle of the seperation of powers into:

- legislative;- executive;- judicial.The powers were to balance each other so that none

could dominate the others.

Scholarship about the policeAlongside general scholarship about state systems,

administrative scholarship aimed at creating a cohesive model and principles for efficient management of the state developed.

It was named police scholarship.Its leading thinker in France was Nicolas Delamare, the

author of „Treatise on the Police” (1705-1710).His monumental work was based primarily on his own

many years of work in the Paris police.The point of departure was Delamare’s discussion of

the history of the police.Next, he presented a detailed analysis of all of the

areas subjected to police supervision.

Scholarship about the police 2The objective of police scholarship was the

"happiness" of the king’s subjects.In this way, an association was developed between the

aims of the state and the interests of individuals.For this reason the concept of "police" was an

exceptionally broad one.Delamare considered the following among the police’s

tasks: Fire protection Preventing epidemics The development of hospitals and medical service Construction oversight Fighting natural disasters Combating excess

Scholarship about the police 3Delamare planned to write successive volumes of his

"Treatise on the Police”. Death prevented him from describing other tasks of the police, such as:

Public safety Combating panhandlers Public benevolence

Other French police scholars included:• Jean Domat (author of "Treatise on the Laws”)• Jacob-Nicolas Moreau, who initiated the

unification of legal acts in the area of public law

Scholarship about the police 4

In 18th century Prussia, political and administrative doctrines were shaped by the enlightened absolutism of Frederick II.

The greatest apologist for this ruler was Christian Wolff (b. 24 January 1679 in Wrocław, d. in Halle on 9 April 1754)

Expelled by Frederick William I, he was then ostentatiously recalled by his son and successor Frederick II.

Wolff led to police scholarship being considered a seperate area of knowledge.

Scholarship about the police 5Wolff placed his deliberations in the multi-volume work

Ius naturae et gentium methodo scientifico pertractatum (1740-1749).

This work contained the foundations of eudaemonist philosophy, aiming at creating the welfare state.

The monarch and his administrative apparatus became the caretakers of the entire society.

Their task was to develop welfare and security, and in this way to contribute to the happiness of their subjects.

Wolff divided the police into: Welfare police, who were to care for the quality of

food, material conditions of subjects, trades, science, art, hygiene, construction, etc.

Security police, tightly coupled with the administration of justice

Scholarship about the police 6

Wolff’s concepts were developed by Johann Heinrich von Justi, who, in "Principles of Police Scholarship" (1756) indicated that the police, understood as administration, should also be an intermediary between the state and society, even against the will of the monarch or his ministers.

Justi developed the postulate of a professional and apolitical administrative apparatus.

He emphasized the necessity of seperating the economic police from the security police responsible for public safety.

In 18th-century Germany, police scholarship became a part of the university curriculum.

The American Revolution

The earliest and most significant attempt at a practical implementation of the postulates of social and economic liberalism was undertaken by the British colonies in America.

The Declaration of Independence of 4 July 1776, based on the doctrine of Locke, emphasized the obvious and natural freedom of all people.

The concept of universal equality was the source of certain inherent and inalienable rights, such as the right to life, liberty and the pursuit of happiness.

The American Revolution 2After the revolution’s completion, the issue of civic

freedoms and rights was addressed in 1789-1791.The federal constitution of 1787 concerned the political

order of the country.Thus, 10 amendments were introduced, guaranteeing

such civic rights as: Freedom of speech and of the press Freedom of conscience Inviolability of the home and property The right of free assembly and to present petitions

exposing abuses of power A ban on forcing people to testify against

themselves A ban on excessive financial penalties