A consultation by Andrea Alciato on the laws of war

In: Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review

In 1550, Andrea Alciato wrote a consilium concerning a case in the Reichskammergericht, one of the so–called Reformationsprozesse, between Henry II (the Younger), Duke of Braunschweig-Wolfenbüttel, on the one hand, and the town of Goslar, together with the leaders of the Schmalkaldic League on the other. In the first question of this consilium,Alciato argues in favour of the Emperor’s legislative supremacy over the Reichskammer­gericht. In three other questions, heuses feudal law along with the ius commune. Alciato concludes that the Duke’s lands belong to the victors, that his children cannot be deprived of their father’s fiefs and that the League is under an obligation to sequester these. It can be seen that Alciato is legitimating the absolutism of Charles V and that some of his sources are cited for their authoritative nature rather than because they correspond with the political reality.

  • 14

    See Stolleis, Geschichte (supra, n. 11), p. 59. See further the remarks at Wijffels, International trade disputes (supra, n. 7), p. 83–84: ‘… by the mid-sixteenth century, the traditional legal methods and authorities inherited from Late-Medieval academic legal learning could still provide the principles and lines of reasoning for dealing with economic issues which neither the civil law nor the particular laws, not even statutory law, had ever systematically addressed. That continuity is, however, no more than an historical trompe l’oeil, for the political balance of power which had prevailed at the time the Italian method had developed its public law, mainly within the Italian peninsula, no longer prevailed in sixteenth-century Western Europe … what had been a largely theoretical foundation of political sovereignty was now being asserted as an effective power, which meant that the balance between particular interests, often still enshrined in century-old privileges, and the state’s interest expressed by the early-modern sovereign, had definitively shifted in favor of the latter. … Moreover, the construction of both privileges and treaties implied inevitably the use of interpretative techniques borrowed from the ius commune tradition … the use of ius commune rules (combining both Roman and canon law authorities and principles) was nevertheless legitimised, through ius commune authorities, by referring to principles of ius gentium and natural law. … The flexibility of that legal framework made it possible, as both parties acknowledged, to take into account policy considerations and the respective interests at stake. Legal arguments in this context did not serve as grounds for settling finally any particular litigation, but served to legitimise new policies. The scholastic Medieval learned law tradition offered apparently endless possibilities for buttressing either side’s contentions. However, as this case-study illustrates, when the legal arguments did not address actual policy concerns and considerations, traditional arguments supporting traditional interests, whatever their venerable past, were no match against principles adjusted to the new power relations within the early-modern political system’. Wijffels makes the same point in A consultancy on wine imports, Tijdschrift voor Rechtsgeschiedenis, 73 (2005), p. 321–355. As we shall see during the course of this discussion, many of these concerns apply to Alciato’s view of the Emperor Charles V. Further references to a tendency towards centralization and monarchical absolutism can be found in Willoweit, Verfassungsgeschichte (supra, n. 10), at p. 103, and in Bosbach, Huma­nisten (supra,n. 12), p. 37–47.

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  • 16

    See Willoweit, Verfassungsgeschichte (supra, n. 10), p. 107.

  • 22

    See Cortese, Grandi linee (supra, n. 18), p. 398–400.

  • 29

    Willoweit, Verfassungsgeschichte (supra, n. 10), p. 106.

  • 39

    Kratsch, Justiz – Religion – Politik (supra, n. 10), p. 27.

  • 43

    Kratsch, Justiz – Religion – Politik (supra, n. 10), p. 2.

  • 44

    Kratsch, Justiz – Religion – Politik (supra, n. 10), p. 6.

  • 45

    Kratsch, Justiz – Religion – Politik (supra, n. 10), p. 51–52.

  • 47

    Kratsch, Justiz – Religion – Politik (supra, n. 10), p. 27, with further references ad loc.

  • 63

    See Whitman, Legacy of Roman law (supra, n. 30), p. 8.

  • 72

    See Branz, Religionsfriedenstatbeständen (supra, n. 10), p. 175–176.

  • 75

    O. Brunner, Land und Herrschaft, p. 120–133, also cited in Isenmann, Recht, Verfassung und Politik (supra,n. 6), at p. 81.

  • 123

    See Cortese, Le grandi linee (supra, n. 18), p. 398.

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