an historical introduction to westerner constitutional law book summary, Appunti di Storia Delle Istituzioni Politiche

Scarica an historical introduction to westerner constitutional law book summary e più Appunti in PDF di Storia Delle Istituzioni Politiche solo su Docsity! of 1 37 HISTORY OF POLITICAL INSTITUTIONS II. TRIBAL KINGSHIP: FROM THE FALL OF ROME TO THE END OF THE MEROVINGIANS The dramatic disappearance of the Roman empire in the West left a great void: the political home in which millions of people had lived for centuries was no more. Finally it was unable to survive the twofold onslaught of the Germanic peoples in the North and the Arabs in the South. From the storms that raged from the fifth to the seventh century three worlds emerged, three heirs of classical Antiquity. Greek Christendom in Byzantium was the direct, but much reduced continuation of the Roman empire in the East, ruled by a Roman emperor and living under Roman law. Latin Christendom lived under Germanic tribal kings, who had taken their religion from Rome, but little culture and even less law. The Arab world of Islam, stretching from Asia via northern Africa to Spain, had inherited not much law and even less religion from Antiquity, but a good deal of Greek science. Latin Christian world of the early Middle Ages — The void which originated there was caused by the loss of some fundamental ideas and structures. The first victim was the centralised imperial state itself and with it the basic notion that its millions of multiracial inhabitants were subjected to one common domination, and that no other autonomous kernels of legitimate power existed beside it: all public authority had been vested in the emperor or descended from him. This emperor - called dominus since Diocletian (d. 316) - was absolute, i.e. not bound by the law, as he was himself its supreme source. The daily life of this enormous empire rested on two pillars, a severe fiscal regime and an extensive bureaucracy. The roman state was viewed as a magistrature. It was not the personal patrimony of the emperor or his lineage, but an abstract and eternal entity. The res public or res Romana, administered by magistrates for the roman people. This state was Roman, Hellenistic, and oriental. It owed to Rome its legal and administrative genius, to Greece its cultural language, its arts and science, and from the Orient came the absolute power of the divine dominus. In the fourth century the empire came first to tolerate Christianity and then to promote it as the sole protected and privileged religion of the state; conversely the Christian churches were placed under the imperial protection and control. In this new world of the 'barbarians' the late-Roman elements were replaced by the following. The division of the old Pars Occidentis into numerous tribal kingdoms betrayed the fundamental dispersion of power. There was a king, but it was his function to hold the other rulers together and to mobilise them for endeavours of the whole ethnic group. In these circumstances there was no question of universalism. Each kingdom was self-sufficient within its own tribe and land, and did not look beyond these limits, except to embark on conquest and plunder. This could lead to mega-kingdoms (see the conquests of Clovis), but these could be quickly divided among the king's heirs. One victim of the loss of universalism was Roman law. The Germanic nations had their tribal laws, which had nothing in common with Roman law, put in writing. Only private law was concerned, as in the new, tribal dispensation there was no room for Roman constitutional law. Initially the Germanic kings were temporary military leaders (Heerkonige) elected for the duration of a campaign. In normal times the ethnic group had no permanent ruler, and political decisions were taken in meetings of nobiles or elders or even all freemen. The kings enjoyed, however, no absolute power. Although they sometimes appeared to eliminate all opposition by a combination of terror and success in war, the fundamental idea was that the king had to respect the rights of his subjects and to live himself under the ancient and sacred tribal customs. Fiscal oppression and ubiquitous bureaucracy had disappeared. The Roman land tax could not be maintained for lack of expert personnel. The old state tax was replaced by the primitive of 2 37 custom of dona ('gifts'), offered to the king by the notables, and the fodrum, an obligation on the local populace to provide the peripatetic kings with food, drink and shelter. Various ancient indirect taxes on the sale and transport of merchandise were maintained. The administration, however, collapsed. The registration of public and private charters diminished and finally disappeared altogether, at the central as well as the local level. Fewer people were capable of drafting documents — in decent Latin — and finally literacy among the laity was completely lost and became a clerical monopoly. The abstract notion of the state and the magistrature was also gone and replaced by the patrimonial conception of the kingdom as family heirloom. That some elements from Antiquity survived in this strange new world was the work of the Church. The Germanic nations and their governments were all eventually converted to Catholicism and recognised the Church of Rome as their spiritual head. The balance of power had changed in favour of the clergy. It is in those early medieval times that the Church came to occupy a position which remained typical for many centuries, that of a great landowner, enjoying an enormous prestige as the teacher of the 'barbarians' and being the sole guardian of the Christian faith and classical culture. Antiquity did not disappear overnight. Consequently even after the fifth century numerous elements of Roman times survived in Western Europe, in the fifth century but in the seventh, when the advance of Islam was reputed to have cut off Western Europe from its classical Mediterranean roots, or even in the eighth century, when Charlemagne is said to have founded the first truly medieval empire. It is undeniable that a fundamentally new situation was established in the fifth century, when rapacious tribes from Central and Northern Europe occupied the place of the old caput mundi ('head of the world'), imperial Rome. We shall now analyse the impact of these events on public law — realm of the Franks — speaking of public, as opposed to private law. For the Romans, as we have seen, this distinction was evident. The laws the Germanic nations, the Salic law for example, mentions the King only rarely and incidentally. Criminal law, which we nowadays consider to be part of public law, was seen as concerned primordially with private interests. Criminal law consisted really of tariffs of payments for damage suffered by private parties. The law courts, moreover, were not manned by professional and bureaucratic judges, as in the late Roman empire, but by notables and landowners who had received no professional education and were elected by the populace each time the mallus (local law court) met. Often they acted as arbitrators rather than judges, and were expected to propose a solution that pleased the public. Thus the term publicus, which used to refer to the commonwealth or the state, as in res publica Romana and aerarium publicum ('public treasury'), came simply to mean 'royal'. Similarly fiscus no longer referred to the finances of the imperial government, but to the personal treasure of the ruler or some particular royal manor. The same applied to some extent to military organisation. Military service admittedly was imposed on all freemen, and this belonged to the domain of public law. Public law of the Merovingian era — The king was the permanent cornerstone of the political organisation of the Franks. The monarchy was hereditary. The kings admittedly were traditionally elected, but the dynasty of the mythical King Meroveus had imposed itself to such an extent that the elective element was obscured, but not entirely eliminated, by the loyalty to the royal lineage, which was deemed to descend from Germanic deities: a dynasty that brought luck to the people deserved to be maintained. In legal terms the central element of royal authority was the bannum, the right to command and to prohibit, i.e., domination. This bannum, was not purely personal or unlimited, as the consent of the populus Francorum had to be obtained. The people owed allegiance not to the state and its Constitution, but to the person of their ruler. This was the all important duty of fidelitas, and it meant that the most heinous crime was the infidelitas, personal disloyalty, leading to banishment and confiscation. The king was no real lawgiver, nor could he be. Nevertheless he played a role in the development of the law, as he assembled the populus Francorum in order to put the tribal laws in writing, and he was also empowered to clarify and supplement the nation’s customs. of 5 37 The spread of feudalism greatly affected the public law. It changed the constitutional position of the king, who came to assume a twofold, if not equivocal role. The king/feudal suzerain had duties towards his vassals, and the neglect of those duties gave them a right of resistance and disobedience. Another important consequence was that wordy public offices became heritable because they had become fiefs, and the fiefs had become heritable. Decline of the first Europe In the eighth century the Frankish monarchy had attempted to weld together the old inhabitants of Roman descent and the Germanic newcomers into one large and stable state, but already in the ninth its reborn West Roman empire collapsed and gave way to new kingdoms and dynasties. That Frankish unity was gone forever was not immediately evident, and both the French and the German kings went on for a long time calling themselves 'kings of the Franks'. All this led to a profound militarisation of the West and the rise of the typical aristocracy of knights, who dominated and even terrorised the land around their castles and its inhabitants. Eventually established western hegemony in large new areas. There was an interesting chain reaction here. Internal and external insecurity had led to a defensive militarisation. The resulting society, geared to feudal warfare, produced a political-military complex that was ready for conquest in the following, offensive stage. Its military base was the castle and the mail-fisted knight, the economic foundation was the manor and the seigniory, and the feudal monarchy was its political expression. The model was exportable: the Normans introduced it in England, and the Crusaders in the Holy Land. The failure of the Carolingian efforts had such far-reaching consequences that the question of its causes deserves to be posed. The geographical extension, does not seem to offer an explanation. The ethnic diversity and the Frankish domination kept alive a strong regional or tribal consciousness. The problem was solved to some extent by the formula of personal union which, as we have seen, preserved the Lombard kingdom as such. Another obstacle was the ingrained patrimonial way of thinking of the Franks and their kings, which viewed the realm not as a res publica administered by magistrates, but as the patrimony of the ruling family. Remarkably enough, Charlemagne followed the old paths, even after his imperial coronation. In his divisio regnorum ('division of the kingdoms') of 806 he indicated in advance which parts of his empire would eventually be inherited by which of his three legitimate sons, Charles, Pippin and Louis. Fate decided otherwise, as the two oldest sons died before their father, leaving Louis the Pious as the sole heir in 814, but the division of 806 remains a significant proof of the strength of the customary ways. Louis decided to abandon the traditional path, and to maintain the unity of the empire. His ordinatio imperii of that year stipulated that at his death the empire would pass in its entirety to his oldest son Lothair. Here again events decided otherwise, for Louis’ realm was in fact divided among his sons in 843, in spite of the ordinatio of 817. Other centrifugal factors were no doubt the intellectual climate and the economic situation. Agriculture was primitive, productivity being so low and monetary circulation so small that centralizing royal revenue and central payment of salaries were impossible. Also, political ideas stressed the role of the sacred figure of the king and personal loyalty rather than abstractions such as the state and civic duty. In spite of its undoubted failure the Carolingian experiment has left deep and lasting traces on the development of European public law. Anointed kingship has for centuries been the most important political institution on the Continent and, till this day, in Britain. This osmosis of religion and politics, in a do ut des (I give so that you shall give) relationship, is a phenomenon which outlasted the Middle Ages. The first Constitution which rejected it on principle was that of the United States of America. When feudalism went wrong, it was because the monarchy was so weakened that it could not control its own vassalage. The case of post-1066 England shows that where kingship was strong, feudalism could be an element of cohesion. The legend of Charlemagne should not be left unmentioned. The great emperor of the West, whom so many ruling houses claimed as their ancestor, has fired the imagination of countless generations. To the German monarchy he was the of 6 37 archetype of the universal Christian emperor and a great legislator; to French kings he was the model of the fighter for the true faith and a national symbol. IV. EUROPE DIVIDED: THE POST- CAROLINGIAN ERA The disintegration of the Frankish empire The disintegration of the Empire of the Franks took place in two phases. There was, to begin with, the division into France (the western Franks), Germany (the easter Franks) and Lotharingia, Lothair’s long, drawn-out middle kingdom, which eventually became part of Germany. So the old Frankish mother country gave birth to two grate kingdoms, France and Germany. The regnum Italie, the old kingdom of the Lombards, enjoyed a phase of independence, but already under King Otto I (d. 973) it came under German hegemony. The German kings had to accept the several regions, where old ethic feeling remained lively, achieved a good deal of autonomy under powerful ducal dynasties, the Stammesherzogtumer, or ethnic dukedoms. In France, royal authority became ignored all together, because the rise of the so-called principautés territoriales — large areas where local noble dynasties took over the reins of government. The kings although in theory still the national rulers of the whole of France, where in fact reduced to the level of territorial leaders of the Isle de France. In the course of the tenth century that area, surrounding Paris, witnessed a power struggle between scions of the old Carolingian family and a new lineage of dukes of Francia, the Robertinians, who finally overcame their rivals and occupied the throne of France at the election of Hugh Capet at Senlis in 987. A total break between the northern and southern France followed, and inaugurated an era where the Midi completely ignored the national monarchy. The accession of the Capetians did not stop the process of division. Thus legitimate power had passed into the hands of local leaders of gangs of armed men, the ultimate consequence of the demise of state power. One can speak without exaggeration of the disappearance of the state. Public authority on such a small scale caused insecurity and was hardly compatible with even a minimum of public order. These local potentates managed to keep order within their own mini-territories and to impose their discipline on the peasantry. This iron age was the European equivalent of the Japanese samurai era and could in terms of public law best be described as a time of quasi-anarchy. Eventually the monarchy was to re-establish public law and order, but for the contemporaries of the weak French kings Henry I (d. 1060) and Philip I (d. 1108) this was hard to foresee. To install a minimum of security there was the proclamation of the Truce and the Peace of God, popular movements inspired by the Church which tended to fill the vacuum left by the state. The sanctions were ecclesiastical, mainly excommunication that to some extent made as an adequate deterrent. Feudalism We shall concentrate our attention on three themes, the legal development of feudal institutions, the feudalisation of public life and the relation between feudalism and monarchy. The rules of the feudal game, i.e. the norms that regulated the relations between lords and vassals and the legal nature of the fiefs, had changed since Carolingian times. Whereas at the start the fief had been the means, in the end it became the aim: previously one received a fief because one was a vassal, afterwards one became a vassal in order to obtain a fief. Fiefs eventually became hereditary. The inheritance was transmitted undivided, usually going to the first son. This rule of primogeniture was to the advantage of the feudal lord, as only a complete fief could support his vassal and secure the desired service from the latter’s heir, but it of 7 37 was also advantageous for the vassal, as only an undivided fief was a sufficient material base for the desirable social and economic position of a noble or knightly family. The multiplicity of fiefs is another aspect of this realisation of the feudal relationship. Originally the bond between lord and man was exclusive, and the vassal could only serve one master and therefore hold fiefs from him alone. Subsequently the hunger for fiefs left to vassals offering their loyal services to several lords and receiving tenures from all of them. The land hunger of the aristocracy went so far that even kings of France did not deem it beneath their dignity to become vassals of their own vassals in order to get hold of fiefs and castles situated at strategic points; in the twelfth century, however, the rule was accepted that in such cases the kings were not supposed to do homage. The feudalisation of public life made enormous progress during this period. Defence, the administration of justice, fiscal organisation and to some extent even ecclesiastical administration were all stamped by feudalism. The nerve of political life was the curia regis, the king’s feudal court. It was composed by the king and feudal overlord and his direct vassals, the tenants in chief, who were great clerical and lay landowners holding their lands and positions directly from him and owing him consilium et auxilium (counsel and support). The court dealt with all kinds of topics, had no fixed abode and travelled with the king. As the kingdoms had their king’s court, so the principalities had their duke’s court or their count’s court. The ultimate logic was that is a feudal lord was ib conflict with one of his men, the case was brought before his court and freely decided there — the judgement of the vassals possibly going against their own lord. The feudalisation of military service was a striking phenomenon. The former summoned the latter to the military service he owed: vassals in any case received their fiefs in order to enable them to fight as professional warriors. The administration of justice was also profoundly affected. Charlemagne had instituted the scabini in the ordinary district courts; they were judgment finders appointed for life. Administration became feudalise in the sense that numerous offices were held in fief by particular families: as tenures became hereditary, so did feudally-held offices. This took place in the royal households, with their hereditary dignitaries, and also on the regional level. Public revenue was also affected by the impact of feudalism. The lord who was obliged to provide for his vassals could himself Appel to them if he needed their aid (auxilium). This feudal request for financial assistance was the starting point of the late medieval demands for grants addressed by kings and other prizes to towns or rural districts and to the assemblies of estates or parliaments. Feudalism was so all-pervading and so deeply affected kingship itself that historians speak of 'the feudal monarchy’.The term is appropriate as the monarchical form of government was maintained, but the latter was transformed by the feudal way of life, which turned the king into a Janus-faced figure. On the one hand he was and remained the ruler of his subjects, which created one-way traffic from the top to the base; on the other hand he was the feudal overlord of his vassals and sub-vassals, and this relationship was based on a contract involving both parties in mutual rights and duties; this created a two-way traffic, so that the king's followers could call him to account and even defy him by renouncing their allegiance (défi feodal) if he continued treating them badly. The origins of classic feudalism are to be found in the Frankish heartland between the Loire and the Rhine. From there it spread to southern France and northern Italy, where the Franks had held sway. From southern France it entered the Christian kingdoms of Spain, developing some interesting characteristics of its own. It reached Germany early on, and was used as an element of cohesion by the Ottoman kings and emperors; it was not used in a systematic way before the Hohenstaufen emperors, particularly Frederick I Barbarossa, who introduced the Heerschildordnung, & formal feudal hierarchy. of 10 37 homage to the king — was worked out in the early twelfth century. It was a compromise based on the distinction between spiritualia and temporalia in the function of the bishops, who were indeed spiritual leaders, but also played a temporal, political role. The distinction was applied for the first time in a governmental act at the London Concordat of 1107, concluded between King Henry I and Archbishop Anselm of Canterbury. The conflict was resumed with great violence under the Hohenstaufen emperors, Friedrick I Barbarossa and Friedrick II. The outcome of the European Investiture Struggle, by no means a peculiarly German problem, was advantageous to the Church. The hold of the state on the Church was weakened, and so was the stature of the emperor in Italy and eventually in Germany itself. Papal authority consequently reached its zenith and the Roman curia intervened constantly in the political affairs, national as well as international, of the crowned heads; the pope even became feudal overlord of several kingdoms and principalities. By forbidding the kings to perform the clerical investiture because they were laymen, a process of secularisation was inaugurated and the road opened for a clear conceptual distinction between the organs and aims of secular society and those of the Church. Authors such as Marsilius of Padua in the fourteenth century stressed the autonomy and legitimacy of the state as the organisation responsible for the temporal well-being of its citizens, and not for some religious objective. V. THE FOUNDATION OF THE MODERN STATE General outline The period from the twelfth to the fifteenth century, sometimes called the Second Middle Ages, witnessed the foundation of the political structured of modern Europe. In those years a new model originated in which we can easily recognise the nation state of our own time. The new kings by contrast found inspiration in Roman law rather than the Bible; they were hard, secular and realistic leaders such as Frederick II in Germany and Italy (d. 1250) or Philip IV the Fair in France (d. 1314). Not only the monarchy, but the state itself changed in character. Whereas previously public life was dominated by the opinionated knights, administration now passed into the hands of centrally appointed functionaries. The geographical borders within which this structural transition took place differed widely and depended on the vagaries of politics, which need not detain us here in detail: a general outline should suffice. In the most straightforward case there was as unitary kingdom where the authority of the one nation monarchy was generally recognised and effective. The kingdoms of England, Hungary and Denmark come to mind, where the modernisation of political organisation took place from the start within the national framework. The French situation was more complicated, as the monarchy had lost effective control of the largest part of the realm and only began to regain the lost territory in the twelfth century. The principalities, which gradually came under Parisian rule, had embarked upon their modernisation before the crown took them over and replaced the dukes and counts by royal bailiffs and seneschals. In Spain, also the internal transformation had started on the regional level and only reached the national dimension after the kingdom of Spain was established at the end of the fifteenth century. The German situation was different again, initially there was a national monarchy which avoided the sort of disintegration which France underwent. But in the thirteenth century, when the administrative transformation went ahead, the political situation had changed to such an extent that it was not in the nation state, but in the German princedoms, that the modern structures were being erected. of 11 37 Italy — in the South, the Norman conquerors began in the eleventh century to erect a state which under the kings of the Houses of Hohenstaufen and Anjou grew into one of the most modern of the time. In the centre of Italy the papal state witnessed a rather slow administrative development, which is remarkable as the papal government of the Latin Church was at the forefront of the modernisation of public law in Europe. In the North, the situation of the old regnum Langobardorum, which had become the regnum Italiae, was legally unequivocal. The kingdom ws indissolubly linked to the German monarchy. Reality however, began to look rather different from the late eleventh century onwards, and the main cities, united in leagues, managed to gain so much autonomy that they eventually were turned into independent city-states or urban republics. The cities developed their own municipal Constitutions, resulting in most cases in the establishment of the monocracy of some leading urban families (so aptly described in Machiavelli’s Il Principe). The new structures Centralisation was the most striking phenomenon, as public law developed from the Germanic dispersion of the centres of power to the Roman concentration of all authority in one hand, that of the ruler assisted by his council. From the twelfth century onwards, local authorities were replaced by a new type of official, who was no member of the nobility, but a salaried appointee of the ruler, to whom he owed his whole position. In England, in the same century, the kings first tried to replace the traditional sheriff (shire gerefa, vicecomes) by an official of a new type, the local justiciar, but this was a passing experiment, and the sheriff remained the local representative of the central government. The old office was, however, modernised through the appointment of people from less exalted origins and the imposition of stricter controls. The central organs of state were themselves transformed. The feudal king's court was split into specialised departments manned by full-time officials, who followed routine procedures. The 'chambers of accounts' — in England called the Exchequer — were followed by central courts of law, such as the Court of Common Pleas at Westminster and the Parlement of Paris. Their professionalism led to bureaucratic methods. These officials and judges had been thoroughly trained, either — as in England - in practice or — as often on the Continent - through the study of Roman law in the universities. The cost of these state services was covered by the traditional income from crown lands and increasingly by grants from towns and parliaments. The Church was also made to contribute, as many royal officials and judges, particularly in the earliest phase, were clerics who lived on prebends and in fact worked for the state while being paid by the Church. One should, however, not imagine that the old feudal order was completely bureaucratised: as soon as a political crisis at home or abroad offered it a chance of showing its prowess on the battlefield and gaining booty and mercenary pay, it grasped it with enthusiasm - whether it was in the Hundred Years War between France and England or in the English Wars of the Roses. A last striking shift in the politics of the period concerns the basis itself of the monarchy. For centuries this had consisted of a group of people, rather than a fixed territory. Whereas they used to call themselves kings of the Franks (for example), around AD 1200 the new style 'king of France', 'king of England', or 'count of Flanders' was introduced. This showed that the state had become a territorial instead of a personal unit, and within the fixed boundaries of this territory the crown constituted henceforth the sole government. Half-way between feudalism and the modern state The late medieval state was clearly positioned halfway between the old feudal constitution and the absolute monarchy of Modern Times. The state was semi-feudal, in so far as the tenants in chief and national government, beside and sometimes against the royal entourage. The baronial revolts under the English king Henry III (d. 1272) illustrated the seriousness of this threat. Consequently the state was only semi- of 12 37 bureaucratic. Bureaucratic ambitions led to clashes with the nobles, who firmly believed that the business of government ought to be left to them. For example, the resistance offered by the Peers of France to the jurisdiction of the learned unaristocratic Parlement of Paris and their contention that they ought to appear exclusively before their fellow tenants in chief, i.e. in the com des pairs, as in the days of the old curia regis. The distinction between the areas of public and private law was also still imperfect and the ancient patrimonial approach was still strong. Princes thought very much in dynastic terms and considered their countries as estates which had to be preserved and passed on to their descendants intact and, if possible, augmented. Expenditure for the maintenance of the royal family and its court was treated on an equal footing with that for the internal and external activities of the state and the revenue from the crown lands was not distinguished from the yields of tolls, fines and grants. The legal limitations of the late medieval monarchy The limitations which restricted the monarchy were, both of an internal and an external nature. The internal ones were caused by urban autonomy, constitutionalism and parliamentarianism; the external ones were caused by the supranational role of the empire and the papacy. The main factors were the degree of urbanisation and the strength of the monarchy. In England, ruled by an ancient and forceful monarchy, towns never achieved political autonomy. This situation appears normal today, when mighty agglomerations like London and New York are subjected to the national government and only carry such political responsibility as the central authorities leave them. But the situation in northern Italy was the exact opposite. It was the most urbanised part of Western Europe, with large cities of 100,000 inhabitants, and it had an enfeebled royal government. Consequently the towns freed themselves from the crown and founded urban republics which followed their own policies, not infrequently entering into conflict with each other. In Germany the decline of the monarchy allowed some cities to achieve political autonomy, the Reichsstddte or imperial cities, but others, situated in principalities with a strong government, remained subjected to the territorial state. In France the communal movement followed the evolution of the monarchy. Thanks inter alia to the support of urban militias, the towns lost many of the privileges they had gained in a different political climate, and their autonomy was greatly restricted. Flanders witnessed a specific development, because it combined exceptional urban growth with early modernization of the administration of the state. Under the captain of Ghent, James van Artevelde (d. 1345), it looked for a moment as if the county would be divided into three city-states, Ghent, Bruges and Ypres. However, the rulers of the House of Burgundy saved the monarchic principle and restored central government. Late medieval constitutionalism was an important European creation, whose impact on public law is most notable in our own day: there is a direct continuity between the fundamental laws of the later Middle Ages and the Constitutions and Bills of Rights of our own world. “constitutionalism' refers to a legal tradition based on the idea that the exercise of political power ought to be restricted by a fundamental pact between the governors and the governed, safeguarding the rights of the latter and denning the tasks and powers of the former. The historic starting point of European constitutionalism was the increased impact of royal power on the persons and possessions of their subjects. The earliest appeared in northern Spain in the late twelfth century, but the most famous is the English Magna Carta of King John, issued in 1215. influencing the constitutional development in England, the United States of America and the entire modern world. King John's tyranny caused a revolt, led by the feudal barons and supported by the city of London and the Church. The king and his agents were accused of treating the subjects arbitrarily and illegally and causing damage to their persons and goods. The Magna Carta Libertatum ('Great of 15 37 and crafts for example, and were led, in Italy, by the latter's priors and the capitani del popolo. The message was clear: in the town the law had to be respected even by the government of the land, and in case of conflict it was for the aldermen's court to decide, even if their judgment went against the count, whose aldermen they were. VI. THE CLASSIC ABSOLUTISM OF THE ANCIENT REGIME General characteristics In the sixteenth century Europe entered the era of classic absolutism, which for most countries lasted until the second half of the eighteenth century. The Fürstenstaat (state of the prince) of the Ancient Regime, which laster for three centuries, was characterised bu the unbridled rule of kings who were not bound by national laws, and by the sovereignty of the nation states, which were not subjected to any supranational jurisdiction. On the internal level royal absolutism meant that the will of the monarch was law: he could mot be bound by laws, as otherwise he would bind himself. The Roman expression princeps legibus solutus or absolutus, is the etymological origin of the term absolutism. Thus basic principle of autocracy recognised in the sixteenth century and was supported by Roman public law and the writings of Roman-inspired political thinkers such as Jean Bodin, authority of the Six livres de la Republique (1576). The medieval parliaments lost much of their power, if they did not disappear altogether. Under the Tudors the English Parliament underwent a twofold development. On the one hand it acme less of a court of law and more of a vigorous legislative body, wielding a sovereign and omni-competent authority. On the other hand, its political position vis-à-vis royal power became weaker than in medieval times. Medical constitutionalism was the next victim. Grants of the Magna Carta type were now classed as privileges, and the new political ideology had never heard of rulers who were fettered by other people’s privileges: if the king could grant characters, he could also retract them. The nobility, with which the monarchs had been obliged to share power for many centuries and whose endless revolts had filled the chronicles of the Middle Ages, was finally tamed. While it continued to enjoy a considerable social and economic eminence in the countryside, it was eliminated from the process of political decision making at the national level. The national Churches also, with their wealthy and influential regular and secular clergy, had to accept the yoke of the autocrats. This was very much the case in England, where the Church was nationalised by the Act of Supremacy of 1534. As the internal obstacles to the state were thus overcome, the last external limits on the sovereignty of the nation states were also removed. Inadequate finance was probably the basic flaw: the treasury was constantly short of cash, and in a few extreme cases the state was declared bankrupt. Just as the so-called absolute monarchy failed to overcome the fiscal hurdle, so it failed in many countries to overcome the barriers of old engrained regionalism. Even in Spain and France, which entered the modern era as unitary kingdoms, many provinces remained proud of their own identity, which was never overcome by the central government. Thus, after the battle of Almansa in 1707 the Spanish king Philip V punished the rebellious provinces of Aragon and Valencia by decreeing the abolition of their now laws, customs and privileges. France was divided into three sorts of provinces, called the pays d’élection, pays d’stats and pays concuss, whose status of 16 37 depended on when they had come under the control of Paris (the latest acquisitions, the conquered lands, being worst of); they were also separated by internal toll barriers. The freedom of action of the absolute monarchy was furthermore in varying degrees thwarted by the judges, who took it upon themselves to defend traditional liberties and privileges, and acted as self-appointed keepers of the fundamental laws of the land and protectors of the people. In the long run we may presume that religious intolerance was another factor of weakness. Indeed, the principle of religious homogeneity was widely accepted, and the metaphysical foundation of the monarchy was such an essential element of the Constitution that people failed to see how one king could appeal to different denominations as the supernatural bases of his authority. But in political terms also intolerance in the end turned against the monarchy, as it reduced the level of spontaneous acceptance, always a factor of stability for a regime. Business could hardly flourish in such precarious circumstances: it is well known that in our time one of M. Gorbachev’s basic ideas was the establishment of the rule of law formed a precondition for the economic recovery of his country. The parliamentary and constitutional monarchy which took shape in England gave a satisfactory solution to this apparent dilemma. Analysis of the public law in two countries France: France can be considered the model par excellence of modern absolutism, which found its classic expression in the long reign of Louis XIV. French public law revolved around the personal rule of the king. At a moment when the regime was contested Louis XV reminded his subjects of this fundamental principle in no uncertain terms: it is in my sole person that sovereign authority resides, it is to me alone that legislative power belongs…; the entire public order emanates from me”. The basic idea was the concentration of all the powers of the state in one hand. The king was the supreme legislator and issued ordinances edicts and declarations in which he was only exceptional assisted by the Estates General. He exercised the executive power and decided personally on all matters of national and international policy, assisted by a Council over which he himself presided and whose members he appointed, and also by secretaries of state who had to execute his political decisions. The king could bypass the ordinary judicial circuit and imprison individuals by means of royal lettres de cachet, whenever he thought this to be justified or politically expedient. It was deemed to be tempered monarchy and the king was regarded as the supreme defender of the Constitution of the fundamental laws of the realm, which he was expected to follow. This Constitution was an unwritten and very vague body of norms and usages which were considered inviolable. It also contained elements of private law, concerning the respect for the person and the property of the citizens, called the honnête liberté des Français. A distinction was made between Lois ordinaires, which expressed the will of the king, and the Lois fondamentales, which were binding upon him. The Catholic nature of the French monarchy, expressed stated at the accession of the Protestnrt King Henry IV who had converted to Catholicism, contributed to the accentuation of the monokitical character of the country and to the persecution fo dissenters, certain closed society. The Estates General met infrequently, and only in times of unrest or crisis. Louis XI assembled them only once, in 1468, when he needed their assistance against yet another baronial revolt. The Estates General which met in Tours in the year oh his death, 1483, published declarations against authoritarian methods and wanted to put an end to royal taxation without their consent. It was the religious wars that again led to their being consulted, but their impact on public affairs was modest, and after they receded, in 1614, in disorder and with a feeling of futility, they did not meet again until 1789, when the Third Estate proclaimed itself the National Assembly and took in hand the task of the total reorganisation of the state and the shaping of a new system of public law. of 17 37 The principal twofold role of the Estates General consisted in agreeing to grants of money requested by the government and in formulating doléances (grievances). There were other representative assemblies besides the Estates General. The Assemblée des Notables were a sort of surrogate, which could be convoked and manipulated more falsify than the Estates General. In the Middle Ages their role diminished, and in the heartland of the monarchy, the area between the Seine and the Loire, they disappeared or were greatly weakened, even before the time of Richelieu (d. 1642). The towns were subjected to the tutelage of royal government: an edict of 1683 contained a detailed regulation of this control, stipulating, for example, that the municipal budget had to be submitted to the intendant, the main local representative of the crown in France, or to the King's Council; communal borrowing and taxes were subjected to similar restrictions. The towns were ruled by oligarchies, inter alia, because the urban offices were sold, as were so many others in the country. The parlements were the other potential centres of opposition. They were higher law courts and their leader was the Parliament of Paris, which was founded in the mid-thirteenth century. The councillors of the parlement saw themselves as the defenders fo the fundamental principles of the law and distrusted new enactments which might threaten the established order or new acquired rights and privileges. The legal technique they used to influence royal legislation was the droit de remontrance, the right of remonstrance or protestation. In the late Middle Ages the usage had arisen for new royal ordinances to be sent to the Parlement of Paris in order to be registered and thus considered official published and binding. The criticised ordinance was sent back to the government which could either take account of the remarks and emend the text, or reject them and ordain registration by royal authority. Although the Parlement de Paris was a law court it was deeply involved in politics. Numerous royal decrees which used legal problems were checked bu their court to make sure they agreed to the hallowed traditions and fundamental laws of the realm. This applied to political and constitutional issued as well as to changes in private law. It was the duty of the Parlement to preserve both the law and the monarchy, which was based on it. It therefore held the balance between the rights of the king, admittedly the sole source of the law and the state’s chief judge, and those of the subjects which he was obliged to respect. At the end of its long life the Parlement of Paris unwittingly provoked the French Revolution by rejecting the fiscal modernisation planned bu the government and by referring the crown to the Estates General for the desperately needed fresh revenue. The plight of the government found itself in was partly caused by the opposition of the Parlement to the introduction of tax equality, and onslaught on privilege which the councillors would not countenance. England: Royal absolutism was a European phenomenon typical for the transition from the Middle Ages to the Modern times. It is not always understood that England also in many ways followed this European fashion. This is because in the seventeenth century that country produced a very different Constitution, which came to inspire liberal movements in many lands. The personal decisions of Henry VIII and his two daughters, the Catholic Mary and the Protestant Elizabeth, determined England’s religious course, which was the most burning issue of the age. Henry VIII wanted and carried out the nationalization of the Church, the break with Rome, the dissolution of the monasteries and confiscation of their landed wealth. Non-compliance with his policy frequently meant death, and even the expression of politically incorrect opinions was a capital offence. Thus, in 1533, his marriage to Catherine of Aragon was declared void and that to Anne Boleyn valid: slandering the latter marriage constituted treason, but in 1536 another statute annulled Anne's marriage and this time anyone who judged that marriage valid was declared guilty of treason. Catholicism was equated with treason, and the pope was considered a foreign head of state who hoped to topple the legitimate queen of England. International politics were in any case the domain of the monarch, in which Parliament was not supposed to dabble. It was Elizabeth who imposed on the Commons the distinction, of dubious constitutionality, between commonwealth matters, on which they could speak freely, and matters of state, to be debated only with her permission. of 20 37 secretaries, albeit in consultation with the Senate, and they are expected to carry out his policy in their respective departments. The federal judiciary consists of a network of federal law courts throughout the country, headed by the illustrious Supreme Court in Washington, the new capital built in the early nineteenth century, which also contains Congress and the president’s official residence, the White House. The task of the nine judges of the Supreme Court is threefold, the maintenance of the constitutional order, including conflicts of competence between state and federal bodies, the uniform interpretation of federal laws and the settling of inter-state disputes. The judges in the Supreme Court are appointed by the president of the United States, in consultation with the Senate — which again shows that the separation of powers is far from absolute. The separation between the executive and the judiciary is, however, complete in a number of states, where the judges are elected by the people for a limited term, with possibility of re-election. Constantly under debate in America. For roughly the first three-quarters of their existence the United States were mainly in favour of appointed magistrates, which was followed by half a century when the tide went the other way and election was on the increase, but this in its turn led to a reaction in favour of appointment: at present nine states, among them Texas, have elected judges. Both the advantages and disadvantages of an elected Bench are obvious. Election by the people is by definition democratic, as it makes the judges accountable to their fellow citizens, especially when they seek re-election. It also avoids the danger of a judicial caste, alienated from public opinion, a not imaginary peril with appointment and even more with co-optation. Election also fits in with American democracy as described by Alexis de Tocqueville in his De la democratie en Amerique (1835-40). American democratic and anti-aristocratic attitudes go back a long way. The immigrants in the thirteen colonies came mostly from social strata which had fled the rule of the landowners and the friends of the official Church, in order to find more freedom and equality in a new land. Such aristocracy as there was in America consisted mainly of Englishmen who had been appointed through court intrigue and, like Roman proconsuls in Antiquity, returned home after they had enriched themselves. The American Revolution was directed against the tyranny of the colonizing mother country and against the king who had betrayed his role of father and cheated his loyal children. This is the basic idea of the rule of law and it was essential to the fathers of the Americal Constitution, among whom lawyers were conspicuous. Although the drafting of the Constitution was a collective effort, one writer stood out among his peers, the Father of the Constitution, James Madison (d. 1836). He later became the fourth president of the US, from 1809 to 1817. Two institutions deserve our special attention here, judicial review of the constitutional of federal and state legislation, and impeachment. Judicial review can theoretically be exercised by every court, but in fact belongs to the Supreme Court. It is an undisputed element of American constitutional practice, although it is not expressly mentioned. The basic idea is the belief that the lawgiver must also respect the norms of the Constitution, and that judges and not legislators are best qualified to decide what is constitutional and what not, since this is, after all, a legal problem. Judicial review entered American legal history in 1803, with the judgement given by the Supreme Court in Marbury vs. Madison. Art VI (2) of the Constitution of 1787 had laid down “this constitution … shall be the supreme Law of the Land; and the judges in every state shall be bound thereby.” The American example has, especially after the Second World War, been imitated in Europe, inter alia, through the creation of constitutional courts. But the American innovation has had no success in Britain , where the sovereignty of Parliament is a sacred dogma and the judiciary expressed declared itself incompetent to examine the compatibility of Acts of Parliament with the Constitution or the fundamental principles of common law. Neither Constitution, the American of 1787 or the Belgian of 1831, mentions judicial review, and both were based on the separation of powers. In both countries it was left to the highest court of law to decide what to do about possibly unconstitutional laws. In Belgium in 1849 the Court of Cassation chose exactly the opposite way, rejecting judicial review and leaving to parliament responsibility for the constitutionality of the laws. Neither in America nor in Belgium could purely of 21 37 legal arguments be found that were decisive, because of the silence of the constitutional texts, hence the possibility of two opposed solutions in the Supreme Court and the Court of Cassation. Theoretically the lawgiver has the last word, because he can always change the Constitution, but in fact this is a cumbersome and rare procedure, because of the very nature of the Constitution and the high special majorities required (two-thirds in both Houses of Congress, and three- quarters of the state legislatures). The executive and the judicature must abide by the Constitution in the same way as the lawgiver, otherwise they risk being impeached by him. Impeachment exists not only at the highest level, where Congress can depose federal judges and administrators, not excluding the president (admittedly an extremely rare procedure), but also at state level, where it is from time to time used by state legislatures against governors and judges (in 1988 the governor of Arizona was deposed by the state's senate, the first US governor to be deposed in fifty-nine years). Impeachment is an old common-law form of process, which fell into disuse in England around the beginning of the nineteenth century, but survived in America. It makes possible the enforcement of the rule of law. The procedure consists of two phases, indictment by the House of Representatives, helped by the House Judiciary Committee (with specialists of constitutional law from both parties), and judgment by the Senate, where a two-thirds majority is required for a condemnation. A famous example of the impeachment of a president occurred in 1868, when Andrew Johnson avoided condemnation by one vote. In recent years the presidential impeachment has been the object of a good deal of attention after President Richard Nixon resigned in 1974 rather than face impeachment for the Watergate affair. The second panel of the American Constitution consists, as we have seen, of a series of Amendments. The first ten, known as the American Bill of Rights, were proclaimed together in 1791, after arduous negotiations and protests because the civil liberties had not been defined straight away in the Constitution of 1787. The Bill of Rights guarantees the traditional individual freedoms and the safety of persons and property. Again from the English part, we find habeas corpus, the well-known remedy against imprisonment without trial. In the First Amendment, the twofold principle of religious liberty and the separation of Church and state is proclaimed. It was a tremendous break with the European past, where politics and religion had been intertwined since time immemorial, and it still contrasts today with eh world of Islam, where society as a whole and in all its activities is subject to one divine law and one religious revelation. The First Amendment was in no way an expression of anti-religious feelings, which are not widespread in America, but the consequence of particular historic circumstances. Granting complete religious freedom and avoiding all official involvement with religious life seemed the most reasonable, even though radical solution. The original Ten Amendments to the Constitution have been expanded in the course of the years to a total, by 1970, of twenty-six (Article 5 of the Constitution had laid down the procedure, as we explained before). The proclamation of the American Bill of Rights of 1791 was preceded by several declarations of human rights and promulgations of constitutions in separate states. Some of these texts, notably the Bill of Rights of Virginia of 1776, are famous in the history of public law, inter alia, because of their direct influence on the French Declaration of Human Rights of 1789. 'all power is vested in and consequently derived from the people' and that 'magistrates are their trustees and servants and at all times amenable to them'. The last section declares that religion 'can be directed only by reason and conviction, not by force and violence and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience’. Interpretation: The tradition of civil rights and limited state power, going back to Magna Carta, and the more recent acceptance of ideological and religious pluralism were conserved from the English past. The obsessive fear of tyranny led to the well-known system of 'checks and balances', where the diffusion of public authority created several centres of power which restrained each other. At the other extreme one finds in Europe the adoration of the state as something majestic, transcendent of 22 37 and even divine (in the tradition of the 'divine' emperors of Rome). Nobody expressed this feeling better than the famous philosopher Hegel, who wrote: 'The march of God in the world, that is what the state is. In considering the Idea of the State we must not have our eyes on particular states . . . Instead we must consider the Idea, this actual God, by itself'. The rule of law and the right to 'due process of law', i.e. the rejection of the princeps legibus solutus idea, was another element the Americans preserved from the English heritage, as was its corollary, the absence of the dichotomy between public and private law and of the notion that special standards apply to the sphere of public law, stacked in favour of the state and against the subjects. Besides federalism, the essential innovation was the far reaching and consistent democratization of political institutions. The elections of the president bu the people is by its very nature democratic, and so is the election of the governors of the states. European democracy is much more parliamentary and indirect. A fundamental law, where the citizens can read which are the powers in the state, how they are organized and what is their function and competence, offers guarantees of cognoscibility and certainty, as does the definition of the inviolable rights of the people. The American preference for a written Constitution was logically followed by the decision to entrust the control of its observance to a college of independent, professional judges, with tenure for life, rather than to the politicians in Congress and their changing majorities. Factors: Every great revolt which, between the sixteenth and the twentieth century, led the way to the modern world had its typical sources of inspiration, conditioned by the Zeitgeist, the philosophical current of the time. The Revolt of the Netherlands against Philip II as well as the Puritan resistance to Charles I were inspired by the jus resisted, the attachment to ancient rights and privileges, anti- absolutism and calvinism. The French Revolution was marked even more deeply by the philosopes and the Encyclopédie, and the Russian October Revolution swore bu the youthful ideology of Marxism. There is a good deal of discussion among historians of the American Constitution whether its principal source of inspiration was the English common law or the Enlightenment. Both, of course, have been influential - and we refer to Locke, Montesquieu and Rousseau for the philosophical impact - but the recent tendency underlines the contribution of the English tradition and points out that the rebellious Americans constantly appealed to English law for arguments to support their claims. The struggle for the Constitution is not only waged between conflicting ideologies, but also between opposing material interests. It was not different in America, as appears from quarrels around British taxes and grumbling about prejudice to American trade and colonial exploitation. Nevertheless the United States remains a land of great social inequality, which bothers government and Congress less than in Europe: a weak or absent state naturally gives free rein to the rich and influential. Political revolutions often lead to social radicalism: the levellers under Cromwell, the sansculottes and enragés under Robespierre, the Bolsheviks after the bourgeois February Revolution of March 1917 come to mind. Although the political institutions framed by the American Revolution have proved perfectly adequate for the huge expansion of capitalist industry in the nineteenth and twentieth centuries and the rise of he’d country to a leading position in the world, this had never been the aim of their creators. Equally remarkable is the fact that so many elements in the American Constitution are so strikingly medieval in origin. In the later Middle Ages, as we have seen, politics was a power game between of 25 37 The nationalization of the Church went further than the most ardent defenders of the Gallican Church had ever imagined; the abolition of the old ecclesiastical borders and the confiscation of the land of the secular clergy went further than what Henry VIII had done in England, but the Assembly did not follow his extreme example of cutting all religious links with the papacy. At France would receive a written Constitution was never in doubt, and it had been one of the express desiderata of the cahiers de doleances. It nevertheless took two years before the text was ready to be proclaimed on 3 September 1791 by the Constituent Assembly. It was the first written Constitution on the European Continent. It repeated the Declaration of Human Rights of 1789 and fixed the main principles of political organization, based on the separation of powers. Three months before the Constitution was ready, on 14 June 1791, the law Le Chapelier was passed, prohibiting associations of workers: they were not allowed to appoint their own executives, or even to discuss affairs of common interest or pass resolutions on them. This violation of the right of association had a twofold goal, preventing the rebirth of the abolished corporations of the Ancient Regime and, after associations of employers had been prohibited, making organizations of workers suffer the same fate. The constitution under the regime of the national convention and the directory (1792-9): The reign of the Legislative Assembly, instituted by the Constitution of 1791, lasted only one year. 67 It was succeeded by that of the National Convention, created after Robespierre's coup d'etat of 10 August 1792, which assembled for the first time on 21 September of that year. The following day the monarchy was abolished and France became acquainted for the first time with the republican form of government. King Louis XVI was condemned by the Convention and executed on 21 January 1793. All power was so exclusively concentrated in the hands of the elected legislature and its organs that there existed no other real executive. Nor was there a president of the republic to replace the king, the result being a country without a head of state and even, after the six ministers had been abolished in April 1794, without a government. The Constitution of the Year I (1793) was the most democratic of the French Revolution. It contained a Declaration of Human Rights, which was no mere copy of that of 1789; the innovation concerned mainly social relations. Thus the line, 'all citizens are equal before the law' was significantly shortened to 'all citizens are equal’. The Constitution also contained the rare express recognition of the right to work and of the right of resistance or rebellion against tyrannical authority, which could be interpreted as the right to strike. The Constitution of the Year III was often of a different character and was in fact applied. The differences concerned the age of the members and their role in the legislative process. The Conseil des Cinq Cents ('Council of the Five Hundred') consisted of young parliamentarians, at least 25 years old, and had the right to introduce (bold) bills. The Conseil des Anciens ('Council of the Elders') contained men at least 40 years old and married or widowers, and supposed to be old and wise enough to decide which bills deserved to become law: their role was limited to accepting or rejecting the proposals from the other chamber. All the judges were elected by the people; they were neither professionals, nor necessarily trained lawyers. The Napoleonic constitution 1799-1815: Napoleon's seizure of power came about through a mixture of violence and legality that is remarkable and found some notable imitators in the twentieth century. Brumaire clearly was a military coup, as at the crucial moment the Jacobin members of the Council of Five Hundred, who resisted and shouted 'la constitution ou la mort’, were thrown out by a posse of grenadiers to whom Murat, the future marshal and brother-in-law of Napoleon, had given the crisp order: 'Foutez-moi tout ce monde dehors' ('throw all this mob out’). The desire to preserve the republican regime under the empire, or at least not to disavow it completely, was expressed in the quaint preamble of the senatus consultum of the Year XII (1804), which declared: 'the government of the republic is entrusted to an emperor’, adding that the emperor carried his title 'by the grace of God and the Constitutions of the republic’. of 26 37 VIII. THE BOURGEOIS NATION STATE General outline Nineteenth century constitutional law reflects the political situation. In the age of Gladstone and Theirs the bourgeoisie, which had been locally powerful since the Middle Ages, gained access to the national centres of command. In Germany and Italy, the nation itself only came into being in the nineteenth century. It was founded by the royal houses of Prussia and Piedmont-Savoy and their great ministers, Bismarck and Cavour, but with the collaboration and the stimulus of the bourgeoisie, which was interested in the abolition of internal economic barriers and the creation of a national common market. The constitutional ambitions of the bourgeoisie were exposed in two key words, constitutionalism and parliamentarism. It created the Rechtsstaat, where the citizens were no more dominated by individuals but by laws to which everyone had to submit. The parliaments of the nineteenth century were often blatantly oligarchic; in Britain until the early twentieth century the House of Lords, the assembly of the hereditary aristocracy, controlled legislation, and in Belgium the celebrated Constitution of 1831 gave the vote in parliamentary election to about one percent of the population. In Britain the nation state, the constitution monarchy and the sovereignty of Parliament had been achieved In the past, so the nineteenth century Constitution continued along the established pattern. The principal changes could be seen as adaptations of the existing order. In France for example, the problem was the government and not the nation state, illustrated by there numerous and violent changes ranging from the restoration of the old and an experiment with a new style monarchy to the short lived Second Republic and the not so short Second Empire, finally leading to the Third Republic where the Constitution and Parliament were triumphant. Political liberalism based on a Constitution went hand in hand with a free-market economy which favoured capitalists and entrepreneurs. As the nineteenth century witnesses a spectacular demographic expansion and consequently a growing supply of labour, the position of the working class was both politically and economically weak The labouring and subjected masses eventually rose against the political and economic oligarchy. The earliest revolts were failures, because the bourgeoisie not only disposed of the machinery of the state, but was self-confident enough to use its position of strength to the full. In the late nineteenth century workers’ parties began to agitate for a change in the regime via parliamentary legislation, but they did not enter the government until the First World War. Great Britain The main change was the extension of the franchise, and the concomitant gradual democratisation of the Parliament, or rather the House of Commons: the other House preserved its ancient composition and power until the early twentieth century. The modernisation of the Commons was achieved by the Reform Act of 1832 and subsequent extensions of the franchise, each of which was accompanied by assurances that was the last. The Act of 1832 redrew the boundaries of the constituencies, which reflected past vicissitudes and were hopelessly out of date. In numerous insignificant countryside districts and the notorious 'rotten boroughs’ the landowner simply nominated the local member of Parliament of his choice, which again advantaged the landed interest as against the new social and economic groups and their political ambitions. The Act went even further and granted suffrage to a new layer of voters from the middle Classe: the tax-paying qualification was lowered and the electorate are by about 50% so that about one Englishmen out of five had the vote. Universal suffrage for men and women at last arrived in 1918. of 27 37 These changes produced no sudden political cataclysm because the working class at first was no more than a pressure group inside the Liberal Party and only resolved to form a modern party of its own and got act independently in the House of Commons at the beginning of the twentieth century. The modernisation of Parliament was no doubt the main change in the British Constitution, and some other adaptations were carried out. In 1888 elected county councils put an end to the patriarchal justice of the peace, who had dominated the countryside for centuries. The medic common law and its courts were reformed, inter alia, by the Judicature Acts of 1873 and 1875. If one understands by a Constitution a rigid fundamental law, different from ordinary laws and binding even for the legislature, then it can be said that Britain has no Constitution at all: its Parliament is sovereign and can make or unmake any law it chooses, without being hindered by a Constitution, let alone judicial control. The sovereignty of Parliament, i.e., its freedom to legislate being neither restricted by existing laws, the general principles of the common law or natural justice, nor subject to judicial review, was well established by the eighteenth century. The basic idea is that nothing can go against the will of the people, that the will of the people is to be dine, and that therefore the will of Parliament, which represents the people, is supreme. If no parliament can pass laws that are binding for a latter parliament, how can a fundamental law, binding Parliament, ever be passed? There is a risk of a petitio principii here, as the argument seems to be that we cannot have a Bill of Rights because no parliament can bind another, as each parliament is sovereign, and it is sovereign because it cannot be bound by other. France after Napoleon Introductory remarks: Monarchism was a nostalgic movement, harking back to the Ancient Regime and rejecting the revolution and all its works. A strong government was required as a dam against the abominated democracy and the political wheeler-dealers and as the guarantor of France's historical role. Republicanism was a movement that saw itself as the true heir of the revolution, and particularly of the National Convention. It was progressive and attached to equality and the secular state. It was bourgeois and parliamentarian. Bonapartism, like monarchism, valued a strong executive and forceful rule, but it lacked the traditional legitimist anchor of kingship. It committed personal rule to a military leader, a saviour of the fatherland in times of internal or external crises. It was not based on parliament and parties, but on popular trust and acclaim, expressed by plebiscite or election. Bonapartism, the French version of Caesarism, appeared on the political scene with the First Consul, Napoleon Bonaparte. It reappeared after the debacle of the Second Republic under Emperor Napoleon III. and gained another chance after the inglorious demise of the Third Republic in the summer of 1940, with Marshal Petain, to many Frenchmen the heroic saviour of France, and with General de Gaulle, to many other Frenchmen the liberator of Paris in 1944. As industrialization came slowly and late in France, the proletariat only became a real force in the twentieth century. In the nineteenth it had surfaced in the brief but violent revolts of 1848 and 1871, but in the last phase of the Third Republic it attained governmental status at the time of the Popular Front and managed to obtain modest social benefits, such as yearly paid holidays and a shorter working week. The republic was threatened by replays of the Brumaire scenario. Napoleon's nephew put an end to the Second Republic, and General Boulanger's followers, who shouted 'A I'Ely see' on 27 January 1889, would have liked to do the same to the Third. But the regime survived until it committed hara-kiri on 10 July 1940 and gave Philippe Petain, a hero of the First World War, full powers to save France. of 30 37 Legally speaking the regime was dissolved by a combined assembly of the senators and deputies which, in July 1940, at Vichy (in unoccupied France), gave a mandate to draft a new Constitution to Marshal Philippe Petain, a hero of the First World War who had been placed at the head of the state in the vain hope of averting military defeat. The marshal was told that the new regime had to uphold the traditional values of travail, famille et patrie. The constitutional law, which was passed on 10 July 1940 by a great majority and after an animated debate, contained a single article: “The National Assembly gives full power to the government of the Republic, under the authority and signature of Marshal Petain, in order to promulgate, by one or several acts, a new Constitution of the French state.” The first use which Petain, as soon as 11 July 1940, made of his full powers was to abrogate the essential elements of the Constitution of 1875, by issuing his Actes constitutionnels nos. 1, 2 and 3. The legislative chambers were 'adjourned until further notice' and the new leader issued the proclamation: ‘We, Philippe Petain, Marshal of France, declare that we assume the functions of head of the French state’. The 'head of the French state' assumed all executive and legislative powers until the new Constitution created the new Assemblies. At the liberation of France in 1944 a provisional government was formed under the leadership of General de Gaulle, who had worked with the allies against Germany during the war. De Gaulle and many members of the Resistance movement had conceived great hopes of a post-war France that would be rejuvenated and socially oriented. From August 1944 till the referendum and the elections of October 1945 de Gaulle ruled in a way that has been called 'presidential and even authoritarian, rather than parliamentary'. The referendum of October 1945 put the choice before the country between the old - and universally condemned — Third Republic and a new Constitution for the Fourth, which would be drafted by a Constituent Assembly elected by the people. The deliberations in the Constituent Assembly led in October 1946 to the proclamation of the Constitution of the Fourth Republic. De Gaulle wanted a presidential regime, with a strong and stable cabinet, whereas the Assembly preferred an omnipotent parliament where the political parties ruled the roost. The conflict between president and Assembly was so acute that de Gaulle resigned at the beginning of 1946. The Assembly carried on, and the constitutional project was soon ready to be put before the country in a referendum. It provided for a unicameral parliament and left the election of the prime minister styled 'president of the Council of Ministers' to the National Assembly, which also elected the president of the republic (who was given a representative role). The negative outcome of the referendum led to new elections in June 1946, but the resulting Constituent Assembly resembled its predecessor very closely and the same parties resumed the same talks. The predictable result was a slightly revised version of the rejected text of May. In the meantime de Gaulle had thrown himself into the battle for the Constitution, advocating a strong state and a chef d’Etat dument et fortement armé (‘a head of state appropriately and strongly armed’). Although the Constitution of the Fourth Republic of 27 October 1946 resembled closely that of the Third and lasted only a short time, it was not without some interest. We draw attention to the following points. The Constitution adopted right from the start the leftist tone: 'France is an indivisible, secular, democratic and social republic'. It broke with the tradition of the older fundamental laws, which were almost exclusively concerned with the rights of the individual and strictly political matters, for it paid great attention to social and economic issues. Article 25 announced a national plan for the economy, in order to ensure 'full employment and the rational use of material resources'. The Constitution declared that everyone had both the duty and the right to work, was free to join the trade union of his choice and to take part 'through the intermediary of his delegate’ in the collective determination of the conditions of work and the policy of the enterprises. In the Constitution of 1946 the legislature ruled supreme. The legislative power was essentially in the hands of the Chamber of Deputies, which gave the regime the name of the 'republic of the deputies'. There was, however, a second chamber, Council of the Republic. Assembly and Council together constituted the Parliament of the Republic. The Assembly was not only a legislative body, but also the real source of executive power, as appears from an analysis of the role of the president. of 31 37 All these fine intentions came to nothing. The omnipotence of the parties, constitutionally expressed in the Assembly, saddled France between 1946 and 1958 with an unstable regime and so many cabinet changes that the Fourth Republic was constantly in a state of latent or open crisis. The inglorious end came in 1958, with de Gaulle's Fifth Republic. Germany from Napoleon to Wilhelm II Introductory remarks: German constitutional development in the nineteenth century was unusually varied and dramatic, because the country was confronted with several fundamental problems at once. Another question concerned the role of the reunited Germany in Europe and the world, for even little Germany would be a political and economic giant. In the course of one century Germany, which beat the French army in 1870, became a major power which not only caused the fall of the Second Empire in France, but developed global ambitions, as expressed bu the term Weltpolitik. The crucial question in internal constitutional terms concerned the relations between monarchy and parliament, as was shown in all its sharpness in Prussia in the 1860s, when the crown felt entitled to raise revenue without the consent of parliament. The old latent questions between Church and state became virulent and led under Bismarck to the Kulturkampf: in true enlightened absolutism style the chancellor wanted to integrate the Catholic Church into the new empire, but met stiff opposition from the German Catholics and the Roman curia. The period of the Vormärz: The period between Napoleonic rules and there revolution of 1848 I known as the Vormärz (literally before March, the month when revolution broke out in Germany) and was marked by hesitant moves towards German unification and the predominance of conservatism: it was the era of Metternich and the Sainte Alliance of the crowned heads of Russia, Prussia and Austria. In June 1815 no single German state, but a German Bund (confederation) was created. This was no mere return to the old Kleinstaaterei, as the number of states was cut drastically: the great shake-up under Napoleon had not been in vain. The most tangible step towards German unity during hat period was the Zollverein (custom unions), which became effective on 1 January 1834 and turned seventeen states with a total population of 23 million into a common market. In Prussia and Austria absolute monarchy was restored, as there was not even a Constitution, and nowhere was a parliamentary regime introduced. Nevertheless, some progress was made, for in southern Germany a few constitutional monarchies were established, where the crown was limited by the norms of a fundamental law. Before 1830, in the era of early constitutionalism, written Constitutions were proclaimed inter alia, in Nassau (the earliest of the series, dating from 1814); Bavaria, Württemberg and Baden. After the Parisian July Revolution of 1830 had caused some panic, other states followed, such as Saxony and Hanover. The five main constitutional monarchies in southern Germany, Bavaria, Württemberg, Baden, Hesse-Darmstadt and Nassau, formed a solid moderately progressive block. The revolution of 1848 and its consequence: The example of the February Revolution in Paris was followed in several Central European countries. In Germany the liberal revolt aimed at unification and a liberal Constitution. Its culminating point came with the parliament of Frankfurt, which gathered on 18 May 1848 in the Church of St Paul and proclaimed itself the Deutsche Verfassungsgebende Nationalversammlung (German Constituent National Assembly). It contained 830 members, elected by the people in their respective states. They showed their attachment to the monarchy by first electing Archduke Johann of Austria, son of Emperor Leopold II, as Reichsverweser ('Reich Regent’), and in 1849 offering the German imperial crown to the king of Prussia, who declined to accept it from the of 32 37 hands of a popular assembly. On 27 December 1848 the Frankfurt parliament proclaimed the Grundrechte des deutschen Volkes (‘fundamental rights of the German people'), followed on 28 March 1849 by the Constitution, called Reichsverfassung, which was intended to turn Germany into a federal state and a constitutional monarchy. It provided, after the American model, for a two-chamber system, consisting of a Staatenhaus, with representatives of the states of the Union, and a Volkshaus, with representatives of the German people, elected by universal suffrage and a secret ballot. At the moment of the proclamation of the Constitution of 1849 the revolution in the German states had already collapsed, and the king of Prussia and the emperor of Austria had diminished its impact by issuing Constitutions of their own. In Austria, where Emperor Ferdinand had abdicated in December 1848 in favour of his nephew Francis Joseph, a Constitution was granted in March 1849, subjecting imperial legislation to the agreement of the Reichsrat. The old monarchies soon reasserted themselves. An imperial letter patent of 31 December 1851 abolished the Austrian Constitution of March 1849, turning the empire again into an absolute monarchy. The fundamental law of 1848 provided for a bicameral system with elected representatives in both chambers and a franchise that came to be considered too liberal and democratic, so that in May 1849 the king introduced, by way of an emergency measure, an involved plutocratic system known as the Dreiklasswahlrecht, or three-class franchise. Its basic notion was that citizens who financially contributed most to the state should have the greed say in its administration. It took the roll of taxpayers as the basis for the indication of bodies of electors. Prussia after 1848 was and remained a constitutional monarchy., where the traditional rights of the citizens were recognised. Prussia, however, was no parliamentary monarchy in the sense of parliament being able to bring down the government. In the 1860s a conflict broke out between the House of Deputies and the royal governemnt. A she representative of the people refused the credits demanded b the king and deemed indispensable for his policy and the national interest. King Wilhelm I riposted by dissolving the House, but the House resulting from the elections remained adamant. It was the PM Otto von Bismarck, the later chancellor of the empire, who came up with a solution, making use of the Lückentheorie (theory fo the gap in the Constitution). It alleged that as ex. art. 99 Const., made no provision in case of parliamentary refusal to vote the yearly budget, this power gap, or void, had to be filled by the royal prerogative, allowing the state to function without the agreement of the elected assembly. In the meantime Bismarck was involved with a more grandiose enterprise, the little-German unification under Prussian leadership: Austria had to disappear from the German scene and devote itself entirely to the Habsburg multinational, and German military success would prepare the path for a German empire, with Bismarck at the helm. His plan was realized by the Austrian defeat of 1866 in a short war with Prussia, and Napoleon Ill's defeat in 1870 in an equally short war with Germany, followed in January 1871 by the proclamation of King Wilhelm I of Prussia as German emperor at Versailles, then under German occupation. The new empire only concerned Germany. The political organization of Austria, which in 1861 had at last and for good become a constitutional monarchy, quickly felt the consequence of its elimination from the German Confederation. As the Habsburgs were now on their own in their heterogeneous empire, they proceeded in 1867 to the historic Ausgleich ('Compromise') with Hungary. After the Hungarian revolt of 1848-9 (put down with Russian help) this ancient kingdom, under Habsburg rule since the sixteenth century, fell victim to imperial unification and simply became part of Austria. Both countries remained united through their common ruler, Francis Joseph, who was both emperor and king, but each had its own government, parliament and capital. The new construction was known as the Dual Monarchy and distinguished common affairs, called kaiserlicn und königlich, from specifically Austrian or Hungarian business. This bipartite arrangement was a success as fas as Austro-Hungarian relations were concerned, but did not solve the nationality problem of the Danubian monarchy as a whole, since many other ethnic groups lived under the sceptre of Francis Joseph. Plans for a confederation of nation states under the House of Habsburg did not go beyond the discussion level. In the end the First World War caused the fall of the monarchy. of 35 37 All powers in the state were ultimately in the Hans of the king, assisted by his ministers and the representatives of the country. Parliament called the States General, consisted of two chambers, the first consisted of an indefinite number of royal appointees for life, selected from the ranks of the leading personalities of the realm. Its purpose was to give the nobles a political role in the new kingdom, as the aristocracy was ignored. The second consisted of an equal number of norther and southern members. They were elected by a complicated system conceived to accentuate their oligarchic, undemocratic character and ensure their loyalty to the crown. Indeed they were chosen by the provincial estates, which in their turn contained representatives of the three social classes. Legislation was, according to the Constitution, in the hands of the States General and the king. Bills were more specifically introduced by the king and the Second Chamber, although in fact most of them originated with the government. In the exercise of his executive powers the king was assisted, or rather served, by a Council of State, with a counselling function and several ministers. These did not constitute a cabinet, headed by a prime minister and leading a political existence of its own. They were, on the contrary, each in his own department the executors of the king's will. The kingdom of Belgium: The nineteenth-century edition of the Burgundian Netherlands was short-lived, and its fragile unity shattered by the Belgian Revolution of 1830. The reasons could be found in the Catholic opposition, which from the start had balked at religious equality and demanded a privileged position for the Catholic Church in the south. Beside the Catholic, there was also the Liberal opposition, which objected to existing restrictions on freedom, notably of the press, and generally speaking grew restless under a regime marked by autocracy and conservatism. That the revolt against the king came in 1830 and was so radical that it resulted in a complete separation was caused by a coincidence of various circumstances. The revolution of July 1830 in Paris, which toppled the old-fashioned regime of Charles X, inspired the malcontents in Brussels and Liege, who began to dream of a comparable success against King William. There was, moreover, social unrest with looting in Brussels on 24 August 1830, caused by rising prices and threatening mechanization of industry. The breakdown of public order was countered on 27-28 August by the armed forces of the well-to-do middle class, called garde bourgeoise, and exploited by the political opposition in the ranks of the bourgeoisie against King William. All these events and circumstances led to fighting in Brussels in September 1830 and the formation of the provisional government which on 4 October of that year proclaimed Belgian independence and announced the convocation of a Constituent National Congress. Various attempts to save the United Netherlands by introducing an administrative separation, keeping a common ruler from the House of Orange, failed. The Constitution of the new kingdom of Belgium was drafted in record time. The two main social forces, the Church and the liberal bourgeoisie, which made the Belgian Revolution, also profited most from the fundamental law drafted under their influence. Freedom of worship, education and association led in the decades after 1830 to an unparalleled expansion of the Catholic Church and its schools and religious orders. On the other hand the removal of royal autocratic control allowed the bourgeoisie, which to a large extent gained command of the state, to develop commercial and industrial enterprise so unrestrainedly that nineteenth-century Belgium was known as the paradise of capitalism. Suffrage was a privilege to which, because of the very restricted franchise, just over 1 per cent of the population was entitled; those eligible for parliament were even less numerous, and the Senate was a club of landowners. The Constitution was a victory for the parliamentary oligarchy; there was no trace of democracy, either direct or indirect. Belgium was also a centralised kingdom. of 36 37 Belgium was also a unitary kingdom. The fundamental division of the country into two cultural communities, the Dutch-speaking Flemings in the north and the French-speaking Walloons in the south, was completely ignored. When French was imposed as the sole official language of the new state, it became clear which part of the country was going to pay the cost of unitarism. On 5 October 1830 the provisional government decreed that the Bulletin des arrets et des actes du gouvernement provisoire de Belgique would appear in French only, ten days later the Flemish Chambers of the Court of Appeal of Liege (with jurisdiction over Dutch-speaking Limburg) were abolished, twelve days later French became the sole language of the Belgian army and on 16 November the same government decided that all laws and decrees would be published in French only. The Belgian’s constitution main sources were the Constitution of the kingdom of the Netherlands of 1815 and the French Charte Constitutionnelle of 1830, which was itself an adaptation of the Charge octroyée of 1814. Some articles were borrowed from the French Constitution of 1791 and from British constitutional practice. In any case, Britain, as the common model of all modern liberal monarchies, had a more profound impact than the limited literal borrowing would suggest. The remainder, some 10 per cent of new material, included ten articles on such important questions as the election of senators, the relations between Church and state and the freedom of association. The Kingdom of the Netherlands: The Belgian Revolution and the ensuing Constitution have not left the north untouched. Dutch public opinion - especially Protestant - welcomed the separation and was glad to be rid of the Belgian rebels. Many Dutch liberals believed William’s enlightened absolutism to be untenable and wanted to introduce ministerial responsibility on the Belgian model, inter alia, because they had been struck by the disadvantage of personal rule at the time of the Belgian crisis. In January 1831 The Hague promised to take the introduction of ministerial responsibility into consideration, but nothing was achieved on the constitutional front. Not until 1840, where a first step was made with the introduction of criminal ministerial responsibility. However the king found these changes unacceptable and abdicated in favour of his son, William II, who accepted the innovations, among others. The revision of 1848 introduced a parliamentary regime, with ministerial accountability to parliament. New articles were borrowed from the Belgian Constitution — we mention among the innovations, the yearly budget and the direct election of the Second Chamber, the First being elected by the Provincial States. Following constitutional revisions extended the suffrage in 1887, introducing universal male suffrage in 1917 and female 1922. Later revisions concerned mainly colonial and European affairs. Revisions of the Belgian Constitution: Revision eventually concerned mainly two fundamental blemishes of the text of 1831, the disenfranchisement of the mass of the people and the negation of the evident reality that Belgium is inhabited by two communities, Flemings and Wallons. The first problem was tackled progressively from the later nineteenth century onwards and finally solved in the middle of the twentieth, when universal suffrage was extended to women. The solution of the second proved much more complicated and the necessary revisions of the Constitution were still going on at the time of writing. When in 1830, the unitary state was founded, one community imposed its language, French, on the other in all official business and to a large extent even in social relations, business, the army and education. The unitary, French- dominated state had to go. Plans to make the country bilingual were unrealistic and rejected by the French speakers. The solution was in dividing the country into two autonomous parts each with its own language, culture and way of life. In legal terms this meant the introduction, through successive revisions of the Constitution, of the federal form of government. The necessary adaptations of the Constitution, passed by the national parliament in Brussels in successive waves, started in 1970, and a fourth revision (following those of 1970, 1980 and 1988), the most of 37 37 radical in Belgian history, was passed by parliament in the summer of 1993. Article 1 of the new Constitution proclaims that 'Belgium is a federal state’. Switzerland After the troubled years of the Helvetian Republic, a French vassal state with a centralized and unitary form of government based on the French model, Switzerland found tranquillity again. Its neutrality perpetuelle and the integrity and inviolability of its territory were recognized by the Great Powers, and it attained its present size when, in 1815, Geneva became a Swiss canton. Swiss tranquillity was disturbed by the mini-war of secession of 1847, when seven Catholic cantons formed the Sonderbund ('separate confederation') and agitated for so much cantonal autonomy that the country might have broken up. The result was the more centralizing Constitution of 1848 which, in spite of partial adaptations and a more thorough revision in 1874, has remained the cornerstone of Swiss public law until the present day. In 1848 Switzerland became a federal state instead of a confederation. Focus on two features: The federal organization combines federal institutions, competent for matters specifically assigned to them, with twenty-two sovereign cantons - not provinces, but mini-states - competent for all other affairs. The federal legislature is a bicameral parliament, called Bundesversammlung or Assembled federate, and composed of a Nationalrat or Conseil national and a Stdnderat or Conseil des Etats, the former being proportional to the demographic situation and the latter containing two members per canton. This Federal Council acts as collective head of state, the federal president being no more than the yearly elected chairman of the Federal Council. In the government, which contains seven members, the linguistic communities are not equally represented, as the custom has arisen that there are four German-speaking, two French- speaking and one Italian-speaking members. It is also customary to have one member from Berne, one from Zurich and one from the canton of Vaud. Besides indirect democracy in the shape of elected federal and cantonal representatives, Switzerland also practises direct democracy in the form of frequent referendums, which can overrule the will of parliament. The mechanism is remarkable as it means that the representatives elected by the people can be disowned by them. In Glarus, Unterwalden and Appenzell this primeval democracy has been in operation since the Middle Ages and the people decide in their annual spring gathering on all questions of legislation and administration. Elsewhere the referendum is a nineteenth-century institution. In 1848 it was made compulsory for constitutional questions. In 1869 the canton of Zurich, followed by several neighbours, included the possibility of a referendum on legislative matters. It is moreover worth mentioning that the Constitution of 1848 recognizes the sovereignty of the cantons as a matter of principle, but only in so far as it is not restricted by the Constitution of the Confederation. This restricted sovereignty, which is in fact a contradiction in terms, reminds us of the European Community, whose 'sovereign' kingdoms, republics and duchies have accepted far- reaching limitations of their freedom of action in such fields as European legislation, jurisdiction and government.