Studies in early modern European culture / Studi sulla cultura europea della prima età moderna 5

New Studies on Lex Regia

Right, Philology and Fides Historica in Holland Between the 17th and 18th Centuries

Bearbeitet von Fabrizio Lomonaco

1. Auflage 2011. Taschenbuch. 351 S. Paperback ISBN 978 3 0343 0543 3 Format (B x L): 15 x 22,5 cm Gewicht: 500 g

Recht > Rechtswissenschaft, Nachbarbereiche, sonstige Rechtsthemen > Rechtsgeschichte

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Destined to involve the attention of some of the greatest Dutch representatives from the philological and historico-juridical school, this debate – wrongly neglected by historians of historiography and philosophical culture, more especially by Italian ones – was not merely some scholarly exercise in literary-rhetorical regulae dictated by the ars historica, by the Cicero- nian opus maxime oratorium, nor was it the privileged locus of applica- tion of traditional motives and lexes of Aristotelian political classical- humanist language. Certainly, in part it was also all this. Yet the history of the lex, inasmuch as the stoma of the irresistible political progress of the princeps, as factor determining the equilibrium of ius publicum, represented an important occasion for Dutch culture at the end of the seventeenth century for reflection on the origins of modern absolutism, and on the reasons for the conflict between auctoritas and libertas. In other words it was a historically-defined locus, useful during the years proving most uncertain for the fate of the Seven United Provinces of the Netherlands for initiating a comprehensive investigation into the effec- tive juridical-political mechanisms of civil and religious society, in the light of the experiences developing in the European political culture of the late seventeenth century. Following the anti-Spanish struggle, delicate contrasts were opened up in 1672, when the assassination of John de Witt, Grand Pensionnaire of Holland and leader of the ‘Regents’ party, had marked the end of the flourishing twenty-year republican period (1653–1672) and the restora- tion of the Stadtolderat of William III of Orange, supported by the no- bility, by the poorest peasant classes and by the most intransigent ortho- dox Calvinists against the threatening invasion attempts of Louis XIV, stemmed once and for all only by the Peace of Nijmegen of 1678. With faith in the revolution now quashed for ever, the internal crises necessi- tated re-defining the principles of juridical science as well as the jurist’s competencies, and theorizing new relationships between jurisprudence and power, to be subjected to the primacy of politics by clearly posing the question of the survival of the republican government against the limits that the international context imposed. In this historico-political situation Grotius becomes a fundamentally important point of theoret- ical and ideological reference for such a task, an authoritative guide both for guaranteeing as well as enhancing the complex processes of transi- tion from provincia to respublica that had come about. Yet his writings on the Lex Regia that take pride of place herein also show the impossi- bility – and this is one of the underlying themes of the analysis here at- tempted – of identifying lateseventeenth century Dutch historico-polit- ical reflection as a unit block distinguished by the dominant personality of the jurist of Delft. Gronovius and Perizonius’ philological-scholastic commitment, and Huber’s historico-juridical interests reveal not only autonomous articulations regarding problems but also a full awareness of their objectives even when they are compared critically with the the- ses of the De iure belli ac pacis in order to define, through essential his- torico-philological comparisons, the characteristics of and limits to the definitions of summa potestas, of obligatio ex consensu (Gronovius and Perizonius) or of the ius potestatum circa sacra (Huber). Yet when Gro- tius’ disciples in criticism break with their master’s theses and show the relevant consequences of this rupture at the historico-historiographical level of organization, they arrive at the common paradoxical assertion of a Grotian interpretation model for an extreme formulation of anti- Grotian reflections. In setting out different solutions for the theme of the origin of potestas and for the relative problem of the definition of the concept of status naturae, of the origin and nature of the contracts, they agree on the need to reconcile jurisprudence with history, and the sci- ence of law with the science of history, and also to formulate a new top- ic of jurisprudence in terms and contents different from those of a hu- manistic-renaissance making. They act more especially within a reflection prompted by the realistic physiognomy of human nature, and its historical nature, and arrive at an interesting re-examination of the traditional concept of Reason of State, making use of Suetonius and Cassius Dio, Tacitus and Machiavelli, permeated into Aristotelian ethico-political paradigms and into the well-tried motives of Stoic ori- gin that are widespread throughout the Dutch culture of an Erasmian and Calvinist tradition. Yet the approach to traditional historico-politi- cal literature, far from meaning a passive acceptance of the great classi- cal models, and especially so for Huber, did not even imply adhering to the precepts of ancient pedagogy on the arcana imperii and the myth of the good or bad Reason of State, but rather was concerned with obtain- ing only general policy instructions and admonitions from ancient and modern history. The responses guaranteed by conventional “precepts” to the problems regarding the origin and limits of sovereign power now appeared completely inadequate and obsolete. The modern juridical theories searched for more satisfactory ones for the queries posed by scientia iuris that was modified in methods and contents. They searched for a science of law capable of referring to “laws” and “principles” of uni- versal and natural right geometrically ordered, and of being compared with the new science, and setting itself as the basis and order of the State in accordance with a doctrinal approach that had found expression in the juridical subject matter of the “philosophia novantiqua”, established in Europe since the time Pufendorf had published his Elementorum iurisprudentiae universalis libri II in 1660, following the Peace of West- phalia (1648) and the great debates on Public Law in the German Em- pire. With circumspect critical sensitivity, the picture of the theoretical- historiographical reference of Dutch historians and jurists, including more especially Huber, becomes complicated on several fronts when comparing Grotius’ theses with and against those of Bodin and Althusi- us, as well as Hobbes and Spinoza, in the utilization of a model, namely that of the “praetorian” law which invited reflection, in keeping with and in dispute with Perizonius, on the modern problem of the relationship between ‘civil equity’ and ‘natural equity’, as opposed to the ancient Ra- tio politica de Statu, a new and just need for Ratio Status, that arose as aequitas civilis on the old basis of ‘natural equity’ and referred to in the order of history. In such a changed theoretical-doctrinal context, des- tined to be fully developed only by Vico’s later political proposal, the other side of the coin of the ancient Reason of State, historical Pyrrhon- ism which had deliberately spared historico-juridical studies in an ob- stinate rejection of a possible truth in history, does not appear to have any reason for being.