I. THE SET OF AGREEMENTS AS A PEACE TREATY AND AS THE BASIC LAW OF THE EMPIRE

Among the great peace treaties of recent history, the Peace of Westphalia is certainly one of the most important. It not only represents the end of a lengthy religious and political conflict, but also creates at the same time a strong constitutional basis for the old empire giving support and structure to the empire for over one and a half centuries. Thus the Peace of Westphalia achieves the character of a "key document" [1] to which nearly all important constitutional and international legal regulations of the empire refer, until the end of the empire and even beyond it. Of the two constituent parts of the peace, the Instrumentum Pacis Osnabrugense (IPO) is undoubtedly the more important. This is also the predominant view taken in the imperial writings, in which the Peace Treaty of Osnabrück is the centre of interest. However, the two treaties cannot be separated from one another, as both refer to one another and both embrace one another, although the most important regulations of the Peace of Osnabrück are advertised in the Peace Treaty of Münster.

Although the Peace of Westphalia does not represent a new order in the sense that the empire would have received a completely different structure, it nevertheless creates, already through the circumstances of the peace treaty itself and its framework conditions, a changed overall situation, which also confirms existing legal and political relations by allowing them to move into a new context. [2] It was also to prove to be extraordinarily momentous that a written document could be referred to, putting a number of long disputed controversial imperial constitutional issues on a positive legal foundation, thus allowing them to be discussed in a rational manner.

One of the most important regulations of the peace for the empire was the legal recognition of the sovereignty of the estates of the empire. This had certainly long been a part of imperial convention which now received formal confirmation. Sovereignty in the sense of Bodin's maiestas is not meant here, although the French guarantor power had aimed to achieve just that. The central provision of Art. VIII § 1 IPO speaks reservedly of the free exercise of territorial rights ('liberum exercitium iuris territorialis'), which points to the fact that the term sovereignty was to be avoided here. In other places, however, it becomes clear in connection with the Reformation rights that the territorial rights and sovereignty ('ius territorii et superioritatis') of the estates of the empire are referred to ( Art. V § 30 IPO ). The status of the estates of the empire are thereby undoubtedly enhanced, both legally and politically, even more so when one considers the right to form alliances with foreign powers ("ius faciendi cum exteris foedera") granted to them in Art. VIII § 2. However, the threshold of the contemporary understanding of sovereignty is neither reached nor crossed. [3 ]This is not only due to the added redeeming clause which forbids alliances against the emperor and the empire, but above all because the overall context of the peace is based on the intention to leave the empire intact in the conventional sense. Nevertheless, a new institutional balance was created between the emperor and the estates of the empire in favour of the latter. Due to the participatory rights granted to the estates of the empire, it was hardly possible to conceive of the empire as an absolute monarchy in legal terms. Instead the empire formed a complicated arrangement of political order in which the hierarchical, federal aspects relating to the estates of the empire and territorial elements were closely connected. [4]

The legal religious issues understandably represent a particularly controversial chapter. It was clearly not easy for the emperor to be forced to acknowledge that the Reformation could not be reversed and that from now on a plural side by side existence of different denominations, a federation of denominations [5], would be established in the empire, in which the Calvinists were also explicitly included in contrast with the Peace of Augsburg. The emperor nevertheless finally agreed to the peace treaty. The latter no longer used conflict and confrontation in religious affairs, but instead was based on those amicabilis compositio, which excluded majority decisions in religious questions in the Imperial Diet, aiming for consent and balance and thus providing the beginning of tolerance based on contractual peace and the imperial constitution ( Art. V § 52 IPO). However, the Reformation rights of the estates of the empire remain a substantial feature of (national) sovereignty, yet at the same time being defused to a large extent by the definition of the so-called normal year (Normaljahr) of 1624. In terms of its legal nature, the peace is both statutory law and treaty at the same time, law certainly of a special nature. Art. XVII § 2 IPO assigns the peace to the basic laws of the empire, while at the same time designating the peace to be incorporated in the Reichsabschied (imperial bill) and the emperor's Imperial capitulation. The last Imperial bill to be passed in 1654 accordingly refers to the peace as a fundamental statutory law and an everlasting guiding principle of the empire in § 6. This was accorded special significance from the point of view of the estates of the empire, because in terms of historical origin, going back to the treaties of government and rule in the Middle Ages, the fundamental statutory laws of the empire were understood as treaties between the ruler and the estates from which equal duties arose for both parties. The Peace of Westphalia thus becomes a fundamental part of the constitution of the empire, to which both the emperor and the estates of the empire were bound. At the same time it contributes to defuse and objectify the conflicts by providing a legal basis to which all those involved could refer to, regardless of continuing religious differences.



II. LEGAL AND POLITICAL REQUIREMENTS FOR PEACE IN THE WRITINGS OF THE ESTATES OF THE EMPIRE

The imperial legal constitutional questions negotiated at the peace congress belong to the great controversial themes which increasingly dominated and determined the legal and political discussion since the turn of the seventeenth century. The imperial writings in which this debate is conducted is at first a relatively open arena, moving in various directions while in the process of trying to become distinct from one another and circling around the ius publicum of the empire. [6] It receives a powerful impetus in the wake of the political changes caused by imperial reforms and the Reformation; above all, however, through the distillation of a legal and communitarian understanding, defined by reasons of state and sovereignty, which increasingly permeates the empire, forcing a re-think of traditional structures. The constitutional and sovereignty teachings of Bodin, applied to the specific conditions of the empire, created quite considerable problems. This was due on the one hand to the concept of sovereignty which was directed at the highest and absolute monarchical power; on the other hand because this made a connection with the Neo-Aristotelian constitutional systems teachings, which only allowed pure or simple forms of states and excluded mixed types. [7] The variety of the early modern state world could only be captured partially and not without distortions in this way. This became clear in the measure in which one sought to make Bodin's teachings usable for the imperial writings. The imperial constitutional teachings focused on the emperor and were represented above all by Theodor Reinkingk. He proceeded on the basis of concepts of sovereignty enriched with Roman - imperial elements, already missing to a large extent in the real political background, thus representing an increasingly isolated and backward-looking view in the face of the considerable importance of the estates of the empire. [8] The opposite imperial constitutional legal position was defended with great vigour at the beginning of the forties by Boguslaus Philipp von Chemnitz under the pseudonym Hippolithus a Lapide. He believed that only the estates of the empire were entitled to sovereignty, with the empire thus qualifying as an aristocracy in agreement with Bodin despite the completely different political starting point. [9] This came closer to the political reality of the empire, but distorted the imperial constitutional structural order as the monarchical position of the emperor and kings was not sufficiently taken into account due to the rigid concept of sovereignty. Apart from these extreme positions, a rather moderate line prevailed in the imperial writings, which certainly came much closer to the position of the estates of the empire rather than the emperor's position. The classification of the empire as a monarchy or as a mixed status made up of monarchical and aristocratic elements was quite predominant. With this alone, much was certainly not won as the reasoning was more important than the result. This did however cause considerable problems due to the demand for absoluteness in connection with Bodin's concept of sovereignty and above all in its exclusion of mixed state forms. The writings of the estates of the empire seek to solve these associated difficulties by dividing sovereignty. According to this approach, the emperor is entitled to personal sovereignty (maistas personalis), whereas the totality of the estates of the empire receive the real sovereignty (maistas realis). [10]

This conception of a divided sovereignty could hardly be based on Bodin. Although he had attempted to loosen the strict doctrine of sovereignty by distinguishing between forms of state and forms of government [11], this differentiation remained superficial and inconsequential as Bodin did not want to part with his self-set premises of a concept of sovereignty aimed at the absoluteness of the monarchical power. Thus he missed not only the legal idiosyncrasy of the empire but also the great variety of early modern state forms. A more conclusive foundation for the position of the estates of the empire was provided by the political theory of Johannes Althusius, who in many respects represents an institutional alternative to the teachings of Bodin. Althusius sees the community not as a result of hierarchical power and rule concentration, shaped by reasons of state, but rather as a dynamic, as well as contradictory process of consensual and social institutionalising, which starts with the formation of smaller communities, only then being able to move on to the larger union of the whole. [12] From its very outset, this theory suits the empire in its organised structure much better than Bodin's rigid concept. One does not by any means have to do without the concept of sovereignty. However, doubt is cast on the absolute character of sovereign ruling power and, in contrast to Bodin, sovereignty is from the very outset conceived as a legally determined and limited power, namely as ius maiestatis. [13] All rule is thereafter to be understood as a mandate and a commission, i.e. the exercise of someone else's right. Consequently, the ruler becomes only the bearer of highest office (summus magistratus) and the entire power stays with the designated community as its own. [14] That the concept of sovereignty in its wider context is included in the lex fundamentalis which legally constitutes the entire community proved to be even more important. [15] The community is established under the auspices of this fundamental law. It is supported as by a foundation. One is therefore not dealing with a constituent part essentially foreign to the system, as with the leges imperii with Bodin, which is added as a limitation to previously claimed absolute power, but rather a cornerstone (columna regni) upon which the entire community is supported.

The fundamental law, thus determined in greater detail, is not only the legal basis of the appointment of rule and power but also has a federal function at the same time. The lex fundamentalis is namely the embodiment of treaties entered into by the regional structures of the empire - above all the cities and provinces - with the avowed aim to create one and the same community and to protect, assist and defend it with words and deeds. [16] It thus succeeds in legally binding the vertical and horizontal, the hierarchical and federal formation of a community marked by a norm which is foundational and fundamental for the entire empire. In this way the sovereignty postulate can be maintained and agreed upon in modified form, beginning with a structured order as well as the idea of a fundamental legal commitment. It is here that the beginnings of constitutional thought must be sought and not in Bodin's concept of sovereignty. [17] The legal and political theoretical requirements for a federal concept are formulated here, enabling the structural accommodation of different community formations. [18] The conception of the reason and limits of ruling power, as developed in the political theory of that time, found expression in various ways in the imperial writings. Nevertheless, the sovereignty teachings of Bodin and his German disciples developed in some respects a formative effect, although they did not really suit the empire. However, the political theory of Althusius also left a lasting impression in the imperial writings. It became particularly important in the constitutional law teachings of the estates of the empire of the Jena Lawyers Circle which centred around Dominicus Arumaeus and Johannes Limnaeus. [19] The question of the legal basis of imperial power, the legal position of the emperor in relation to the empire and the estates of the empire, as well as the political and legal status of the empire itself were some of the central themes discussed in this circle.

Thus the Golden Bull, Imperial capitulation, the imperial bills and, last but not least, the imperial custom and tradition came to the attention of the imperial constitutional discussions. That the emperor was no absolute ruler, but a ruling power described by law and limited by the estates seems plausible, but certainly requires more exact explication. The concept of sovereignty is also here the central starting point for the argumentation. However, it is not to be seen independently of positive law, as represented by Bodin, but rather following Althusius, in the light of reasoning based on fundamental law. The clearest expression of this is to be found in the writings of the Saxon lawyer Benedikt Carpzov, also a member of the Jena Circle, who puts the sovereign ruling power on the legal basis of fundamental law. Accordingly, sovereignty cannot be separated from the fundamental laws. The connection is of a legal kind and lies in the fact that the maiestas must be thought of not as an absolute power, but as a legal power based on fundamental laws ("potestas legibus circumscripta"). This, furthermore, has the consequence that neither the maiestas realis nor the maiestas personalis can be understood without the law that underlies them both. [20]

The writings of the estates of the empire have become important for the Peace of Westphalia in many respects. Although the peace cannot be understood as a direct conversion of the relevant ideas of these writings or their respective political theories, they played a role in the proceedings. The legal and political ideological horizon they shaped and conceived was an ever-present and effective background when one considers that the instrument of peace explicitly include the estates of the empire as partners, giving itself a fundamental law nature, i.e. also a contractual character, and over and above this prescribing the regulations of the peace as a binding normative guide in the future for all parties permanently. When the peace is then brought before the next Imperial Diet in accordance with Art. XVII § 2 IPO and is passed as an imperial statutory law, then it certainly gains the character of a constitutional programme and the Imperial Diet receives the quasi-function of a constituent assembly. [21] In this point, the Jena School of the writings of the estates of the empire probably had the strongest effect, also by passing on the ideas of Althusius, even if this cannot manifestly be seen throughout.

In contrast to this, the religious - legal questions recede in importance. However, the estates' liberty in religious matters is nonetheless emphasised [22], which is not surprising when one considers that the writings of the estates of the empire was at that time predominantly a protestant domain. However, the central legal and political questions of the constitution of the empire cannot simply be placed in a denominational schema. Furthermore, the political interests of the estates of the empire did not run throughout on denominational lines, and certainly cannot be judged exclusively by denominational criteria. The writings of the estates of the empire made an important contribution to a more rational understanding of the law and - in connection with the relevant regulations of the peace of Westphalia - at the same time to the secularisation of the ius publicum of the empire by giving the discussion a constitutional reference framework.



III. THE CONSTITUTIONAL INSTITUTIONALISATION OF THE PEACE AS A CHALLENGE FOR THE IMPERIAL DOCTRINE OF PUBLIC LAW

Although the peace did not bring about a completely new order in legal and political relations, it did lead the old empire into a distinctively changed situation. In the imperial writings, the peace, in agreement with the imperial statutory law, is soon acknowledged and predominantly welcomed as a constant and generally binding Basic Law of the empire and raised - admittedly for the estates of the empire - to the status of a "Bible". [23] This is hardly surprising, as the estates of the empire could in the future refer to a fixed written legal imperial document of high authority, which to a large extent met their legal conceptions and was, in addition, in foreign policy terms ensured by the guarantor powers, especially Sweden. Under these circumstances, the Peace of Osnabrück gains a special importance. As compared to the Peace of Münster, the Peace of Osnabrück receives increased significance and greater attention above all because the ending of the civil war in Germany and the reinstatement of universal peace, which includes all the estates of the empire, are justly attributed to it. [24] However, this does not entail unanimous praise of the peace or even uncritical glorification. [25 ]From the very beginning critical voices can be heard, who point out a certain ambivalence in the Peace of Westphalia in terms of the religious - denominational as well as political aspects, which makes it difficult to formulate it in a handy and succinct formula. [26]

A particular point of conflict following the peace treaty is the status of the empire. This issue is at first overshadowed by other problems directly concerning the peace and its practical conversion, but is raised again in the sixties. Only at this point is there an awareness of the political consequences of the peace and its national and international legal significance for the empire and its constitution. Pufendorf's imperial constitutional work marks an important turning point in this debate. [27 ]His monstrosity judgement, which is discussed even today, is, next to the Hegelian dictum, the probably best-known statement on the old empire. It was immediately subject to harsh criticism, indicating that a sensitive point in the internal understanding of the emperor and empire had been hit. When Pufendorf describes the empire as an irregular and monster-like body - "irregulare aliquod corpus et monstro simile" - he initially only wants to express the fact that it does not fit into any contemporary well-known theoretical state categories. The statehood of the empire is not denied in this statement, which he - admittedly only later - made clear to his numerous critics. [29] Nevertheless, this statehood is irregular and does not correspond to the rule. Thus the question of the yardstick of the criticism arises. The foundation and starting point is the understanding of state and statehood, oriented according to the Neo-Aristotelian constitutional teachings based on pure forms, already a guiding factor for Bodin, which is now sharpened and intensified by the contractual theory based rationalism shaped by Hobbes. Pufendorf is unable to appropriately ascertain the status of the empire with this constitutional and legal theory background. Even the premises of his constitutional and legal concepts were conceived according to completely different assumptions, namely unitary state assumptions, as developed later in his main natural law work [30 ], and thus missing the multidimensional nature of the imperial structure. This is by no means a fictitious problem, as claimed by some, as the question of the status of the empire was not only important in terms of terminology and definition, it also raised fundamental legal and also (power-) political questions. [31] Although Pufendorf does not take over Hobbes' teachings in their fullness and with all their consequence, even in modified form his absolutist concept of law and state was not easily transferable to the empire. It might have been more applicable to the political structure of the larger territories of the old empire (which in the case of protestant areas was in his favour). However, it was not applicable in a comparable manner to the imperial level and the complex relationship between emperor and empire. Pufendorf's understanding of state is namely not determined by the existing empire, but much more so by the very differently structured contemporary France, which possessed many model features for him in the light of rising absolutism. [32 ]It should therefore be doubted whether he intended to part with the Neo-Aristotelian orthodoxy with the help of the monstrosity-formula in order to express himself without the constraints of the viewpoint of traditional teachings on constitutional forms of state. This may have been a latent consequence of his analysis of the status of the empire, also as a later meaning, however, it does not seem plausible as a consciously made decision from the perspective of his basic conception of legal and constitutional theory. [33] Even though Pufendorf later weakened and then finally dropped his monstrosity formula [34], this must be seen as a reaction to the strengthening of the hierarchical structures of the empire at that time and not as the intention to modify or completely change his theoretical concept. Thus, the understanding remains, with the once taken point of view, of the empire as an entity which cannot be closely qualified, a system which comes close to a multi-state system, but which finally defies any legal and state theory classification and cannot be captured as when one considers it as a whole it is once again to irregular to qualify. [35]

That one could see the empire from a completely different point of view was first demonstrated by Pufendorf's imperial constitutional work and the controversial literature which followed it. Ludolf Hugo, a lawyer from Hanover, made a remarkable attempt, a few years before the publication of Pufendorf's work, to comprehend the old empire as a double rule structure ("duplex regimen"), referring to the empire on the one hand and the individual regions on the other. [36] The territorial sovereignty imparted to the estates of the empire in the Peace of Westphalia is thereby given a lucid interpretation within the given relations as the highest power conceivable analogue power to rule; although not completely free, it is still general and extensive, so much so that it seems to take on the character of highest power. [37] Leibnitz was probably the most consequential in continuing the idea of a double structure of power in the empire. [38] Although it is doubtful that Leibnitz actually presented a theory on a federal state based on estates, it is clear that the empire could only be adequately legally inferred on the basis of a relative and functionally differentiated concept of the strict principle of sovereignty. [39] Considerations of this kind can certainly already be found before the Peace of Westphalia in both the imperial writings and political theory. However, in the second half of the seventeenth century this was hardly referred to. In this respect, the Peace of Westphalia really does represent a turning point for the constitution of the empire and the imperial writings. This can even be felt within the Jena School to the extent that their influence extends beyond the middle of the century. Thus Benedict Carpzov, who, in his time, was a leading representative of the constitutional integration of sovereign ruling power, argues with noticeably more reserve following the Peace of Westphalia than before. [40 ]An appreciable strengthening of the larger national powers is brought to effect, which marked by the tendency towards absolutism and centralisation did not unjustly consider itself to be legally acknowledged by the (national ) sovereignty granted by the Peace of Westphalia, while certainly at the same time finding its limit in the imperial legal regulations, anchored in the peace treaties and fundamental laws. In this respect, an important protective function fell to the Reichskammergericht (The Imperial Chamber Court), which was recognised and honoured in the imperial writings. [41] However, the political theory of Althusius is hardly referred to. Where it is referred to, it is judged to be revolutionary and dangerous in view of the increasingly stable ruling and denominational relations. [42] The fact that the Calvinists operated within the empire from a minority position also had theoretical political effects and was a contributing factor to the marginalisation of the teachings of Althusius and his school. From now on, the imperial writings came to terms with the empire and it's constitution and turned all its attention to the positive law of the empire state, based on legal sources and becoming increasingly legally systematic. As manifested above all by the Constitutional Historical Law School of Halle, and later in the systematic approach of the Göttingen School, a growing historical methodological consciousness begins to take effect. This is when the great accounts recognising the peace for its legal and practical meaning for the constitution of the empire came into existence: the work of Karl Wilhelm Gärtners highlighting the historical political background of the peace in his source publication and above all the work of Johann Gottfried Meierns [43]; also the commentaries and systematic accounts, such as the extensive "Meditationes" by Heinrich Henniges [44 ]or the concise comparative analysis of constitutional and international law by Christian Gottfried Hoffmann [45.] Although they are lawyers whose concern is the liberty of the estates of the empire, an attempt is made to do justice to the position of the emperor and they are well aware of the fact that those regulations relevant to the relationship between emperor and empire contain contradictions which are not easily solved. [46]

In the imperial writings from now on two originally connected and mutual points of view grow increasingly apart. One, which is drawn on the community in a general-theoretical manner without considering a particular state, is methodologically oriented on the rational and natural law and on the handed-down orthodox-Aristotelian political theory and is aligned with the idea of a more or less absolute Fürstenstaat (#state of princes or principality), which was directed at the larger territories and in part carried out. The span of the content reaches from the moderate absolutist teachings of Pufendorf to the more decisive forms of absolute statehood, which found expression for example in the Theocratic-Lutheran politics of Johann Friedrich Horns. [47 ]This perspective met the demands for power and the interests of the national rulers and territorial powers, but could not easily be transferred to the empire's constitutional structure. The other point of view is completely dedicated to the valid positive ius publicum of the empire, whose legal sources can be exactly ascertained and systematically developed. In the eighteenth century, however, this positivistic imperial constitutional law became rigid and was fixed in the historical collections of Johann Jakob Moser and the systematic order of Johann Stephan Püttner. Moser believed that, also with respect to the Peace of Westphalia, he could largely limit himself to the presentation of sources and facts [48]. Püttner, who gives the last extensive word on peace in the old empire in his later works, succeeds in clarifying in an exemplary way, even for today, the historical and systematic context and connections. In both these approaches, however, the spirit of the peace is only developed imperfectly. [49]

Only now - already marked by the ever-increasing threat to the legal and political structure of the empire in the form of the Austrian-Prussian dualism - does a consciousness seem to develop that statehood can legitimately unfold on more than one level, without necessarily becoming a monstrosity. [50 ]However, in the face of this new and now revolutionary challenge, the situation had long been reached in which the legal and political system of the Peace of Westphalia increasingly reached the limits of its efficacy. It was in this sense that Hegel relentlessly reduced the empire to the totality of rights which the individual parts had taken from the whole, thus removing the basis of its existence, as something cannot exist when it can no longer be conceived of. [51 ]Hegel thereby draws the consequence of the new power constellations caused by the revolution and at the same time thinks away the empire, no longer imaginable even as a monster. The question as to the statehood of the empire thus seems to become just as redundant as the question of its federal structure, especially as the latter only came into the picture as the result of thinking oriented towards the sovereignty of the people and national identity which was only negatively constructed, namely as a process within the individual parts of the empire of increasing particularisation and an unrestrained striving for liberty.

Meanwhile, with an interval of two centuries between the destructive dictum of Hegel's empire, law and peace can be seen in a characteristically different light. In the face of far-reaching and world wide challenges, state and sovereignty as guiding and leading concepts are on the defensive. A static-state oriented way of thinking, which determined the nineteenth century and large parts of the twentieth century, trying to reduce the multi-layered federally organised political orders to the constitutional-organisational legal difference between a federal state and a confederation of states, has proved to be largely obsolete. This seems to justify the question as to whether the development of the national state is or must be the only conceivable one in German history. [52 ]The complicated and contradictory legal and political structure of the old empire, which is closely connected to the system of the Peace of Westphalia and does not correspond to the type of sovereign unitary states, moves closer to us again against this background. [53 ]If the contemporary constitutional law and constitutional theory reflections of the old empire in its variously structured reality following the Peace of Westphalia could only in part do it justice, this should not give rise to an all too critical evaluation. Also in our time, occasional success comes only laboriously in the attempts to capture the variety and dynamic development of complex community formations in a legally adequate manner. When it comes to the determination of the legal nature of the European Union, formulas and concepts are used which in their helplessness remind one of Pufendorf's afflictions. The difference is that we no longer endeavour to understand the monsters and monstrosities, the institutional improbabilities. Instead we withdraw more elegantly from the issue by calling the institutional entities "one of a kind" or, more subtly because it is Latin, speaking of institutionalisation "sui generis". [54 ]The fundamental structural problem given to us by the Peace of Westphalia remains virulent in transposed form. It consists of establishing reasons and limits of a legal order beyond the boundaries of a single state, which is capable of jointly creating as well as permanently guaranteeing law and peace in times of violent political and ideological conflicts.

FOOTNOTES