Rafał Wojciechowski European Legal Culture

1. Rafał WojciechowskiEuropean Legal Culture

2. Tribal kingdoms After the fall of the Roman Empire there arouse in Europe local states of various Germanic tribes. The tribal states did not initially have the characteristics of a territorial state. They were associations of free people. The highest authority in tribal states was the council. All free men capable of handling weapons participated. With time, only the elders of the tribe took part. This political order is known as war democracy. Generally, the council gathered at regular intervals, usually in the spring and autumn. It decided about the fundamental aspects of the community's life: declaring war, concluding peace, selecting kings or leaders and appointing high officials. It also exercised supreme judicial power.

3. Tribal kingdoms 2 The authority of the prince or king came from the powers of the supreme military commander, selected from among the most capable and bravest warriors. The selection was performed by the council, usually from among members of the tribal aristocracy. The selection usually came from the same clan. A totally free election happened usually when the royal clan died out. The significance of the council was reduced, and the king’s powers increased. In the times of Charlemagne (768-814) the council was an opportunity to undertake a military review. After that king died, no more councils were convened.

4. Patrimonial monarchy As the council’s significance decreased, the state began to be viewed as the property of the ruler himself (patrimonium), which is why we speak of the patriarchal monarchy. The central focus of state administration was the royal court. The king travelled together with it around the entire state. The councils were replaced by court assemblies. They were based on church synods. They could address all matters of state, but their role was purely advisory.

5. Patrimonial monarchy 2 The Frankish state’s most important officer was the majordomo (maior domus regis). He served as the king’s deputy and his chief advisor. After many decades, majorodomos became hereditary. In 751, majordomo Pepin dethrones the Merovingian dynasty and eliminated the office of majordomo. In 800 Charlemagne was crowned by pope in Rome as a Roman Emperor. In 843, the heirs to Charlemagne divided the state among themselves in the Treaty of Verdun.

6. Feudal fragmentation After partition of the Frankish Empire France, was quickly divided into smaller pieces leading to the weakening of authorities and increasing feudalization. In 987 the French throne was occupied by Hugh Capet. He began the reign of the House of Capet (later the Capetian dynasty) on the French throne, yet initially his successors were designated and then selected while the king lived. It was only Philip August, who reigned from 1180-1223, who ended this practice. His son Louis VIII received the throne hereditarily, which was from then on expressed by the phrase "The king is dead, long live the king". Philip August conclusively led the country out of feudal fragmentation.

7. Feudal fragmentation 2 At that time of feudal fragmentation every feudal lord had the right to conduct war. This led to chaos and the disappearance of the population. This was opposed by the Church, which introduced the institutions of the Lord’s Peace (Pax Dei) and the Lord’s Truce (Treuga Dei). The first gave legal protection to those not involved in conducting war, such as farmers and priests. The second forbade fighting on special days such as Easter, Christmas, and finally every day of the week except for the time from Monday evening to Wednesday morning. Violation of these rules could be sanctioned with excommunication and a trial before the tribunal of peace.

8. Feudal fragmentation 3 With time the kings themselves began to limit private wars. In 1258, Louis IX introduced a general ban on private wars. In spite of the ban, these wars did not end in France until the 15th century. The feudal hierarchy never questioned the king’s right to conduct France’s foreign policy. The royal lawyers’ activities led to the principle that in relation to the Pope and the Empire, "the king is Caesar within his own kingdom". The concept of the French’s Church’s dependence on secular authority was developed. At the beginning of the 14th century, this led to a conflict between King Philip IV and Pope Boniface VIII. The papacy, losing the conflict, fell into what was called the "Avignon Captivity".

9. Estate monarchy France was an estate monarchy in the period 1302-1484 The king’s power took on a public-law dimension. This was done in France with the participation of educated lawyers, called legists. They used Roman law as their guide, from which they took fundamental concepts of the state and of royal power. They provided a foundation for the legal basis of royal authority, leading to the king being acknowledged as: • The highest feudal lord • The source of all justice • The sole holder of sovereign authority in the state

10. Estate monarchy 2 The Royal Council in France was taken from the royal curia of the 13th century. It was a collegial body. Its composition was fixed in the 16th century. It was composed of peers, grand vassals of France, leading clerics and royal advisors. Its powers included: • Conducting foreign policy • General state administration • Financial matters • Cassation hearings • The power to bring every administrative or judicial matter before the monarchical court

11. Estate monarchy 3 Daily administration in France was a mater for the royal chancellery. At the end of the 15th century it employed around 100 specialists who prepared around 20,000 documents every year. The importance of the chancellor was growing. Besides directing the chancellery, he also oversaw state administration and the administration of justice. New bureaus and archives were also created. Statistical, documentary and cartographic activity increased. The system of granting civil servants feudal properties disappeared. They received salaries.

12. Absolutism Theoretical foundations were created by such thinkers as: Niccolò Machiavelli (1469-1527) developed the theory of the cyclical collapse and growth of political structures. In his opinion, during the regeneration of the state its political order should be based on the absolute authority of the ruler, as this is the only way to reverse its decay. Jean Bodin (1530-1596) viewed sovereignty as the fundamental characteristic of the state. It is to be indivisible and permanent. Its primarily expression is the monopoly of the state on establishing and enforcing the law. Martin Luter (1483-1546) believed that since all power is derived from God, obedience to authority is a Christian duty, even when the ruler is a tyrant.

13. Absolutism 2 The absolute monarchy spread the idea of the state as a public good, a sovereign legal person. There was no longer a place for patrimonial ideas, the state as the property of the ruler. The monarch was the highest organ of the state. His power was unlimited and subjected to no external control. Theoretically, the monarch was only subject to heavenly law, which in time came to be viewed as natural law. There was no absolute monarchy which fully realized the idea of unlimited monarchical power. In France, which was the leading absolute state, the king was subjected to the so-called fundamental laws of the monarchy.

14. Absolutism 3 The Privy Council of the king of France met under the leadership of the chancellor and contained 4 secretaries of state, 30 counsellors representing each of the estates, and several referees. It performed judicial functions as: • The court of cassation, quashing verdicts of other courts issued in violation of substantive or procedural law • An administrative court, hearing disputes between the king’s subjects and administrative authorities • A court of competence – resolving disputes about the jurisdiction of courts between organs of the highest instance.

15. Absolutism 4 The four secretaries of state based their offices on those of the old notaries of the royal chancellery, whom the rulers entrusted with the most important activities. With time, each of them was entrusted with rule over one of the regions into which France was divided. Geographic criteria also led to their responsibility for foreign policy in respect of neighbouring states. At the close of the 16th century their authority was divided according to substantive criteria. Ministries were thus created: • Foreign affairs; • War; • Maritime affairs; • Royal court.

16. Absolutism 5 A ministry of interior was not created. The old system of administration based on four regions was maintained. The king generally selected as secretary of state an individual from the administrative aristocracy (nobles de la robe) or from among rich urbanites, which was associated with awarding hereditary nobility. Each minister, as an advisor to the king, was responsible only before him. Only in extremely exceptional circumstances were the most outstanding ministers named prime minister (e.g. Richelieu, Mazarini)

17. Absolutism 6 Absolute monarchs placed great importance on issues of local governance. The local administrative apparatus was built on the principles of: • Acting from the office • Hierarchical discipline • Nomination of civil servants

18. Enlightened absolutism In the 18th century, the ideology of the Enlightenment showed the negative aspects of classical absolutism. Some European rules adopted some of the ideas of that ideology, as long as they did not run contrary to the essence of absoltue power. Some European countries saw a range of social, economic and administrative reforms implemented. Enlightened absolutism reached its peak in Central and Eastern Europe, particularly in such countries as Prussia and Austria. In the West, either classic absolutism remained, such as in France and Spain, or parliamentary monarchy developed, such as in England. In the East, particularly Russia, while rulers did flirt with Enlightenment philosophies, they did not implement enlightned absolutism.

19. Enlightened absolutism 2 Rulers introducing enlightened absolutism in their countries no longer emphasized the godly origins of their authority, but maintained its unlimited scope. The monarchial authority in these states was then expressed in rational terms, and monarchs began to view themselves as servants of the state. Ruling in the service of the interest of the state, they held their highest obligation to be the good of the people, and strived to ensure their happiness and prosperity. The monarch’s duties became: to establish the law, to govern the state in the name of its inhabitants, to support economic growth and (a clear novelty) to ensure real religious tolerance. Rulers scaled back the royal court’s opulence and provided continuing support to education and science.

20. Enlightened absolutism 3 Monarchs implementing enlightened absolutism or elements of it achieved a level of on going and personal control over the state apparatus which had no equal in classical absolutism. The centralism of Prussia and Austria from that period has no equal in modern times. The greatest advances were made by enlightened absolutism in Prussia under the reign of Fredrick William I and his son Frederick II, whom historians often call the greatest bureaucrat of the century. Frederick II ruled through cabinet orders and marginalia (decisions scribbled in the margins of letters), and the civil servants under him became passive vassals of his will.

21. Enlightened absolutism 4 In Austria, the embodiment of the enlightened monarchy was Joseph II, son of the emperess Maria Theresa. This ruler worked hard to create a centralized, humanitarian welfare state. The majority of his reforms were either revooked or limited by his successors. Some elements of enlightened absolutism were introduced by Catherine II. She was in close contact with philosophers representing the ideas of the enlightenment, particularly Voltaire. She did not implement social reforms, but only improved the organization of the state based on the Prussian model (this is no surprise considering she was from Szczecin).

22. Enlightened absolutism 5 In Prussia, the personal ruling of Frederick II lead to the king getting personally involved in many affairs he could have left to his servants. As a result, one speaks of cabinet governments, as many types of matters were personally decided by the king. Once a year, Potsdam was the seat of a meeting of the entire royal cabinet. The state budget was the focus of the sessions. Civil servants were recruited from among Junker families, yet from the times of Frederick II they were joined by growing numbers of urbanites. A career ladder was established. In 1763, compulsory education was introduced in Prussia, which had many consequences for that country and all of Europe.