Studies in the History of Law and Justice 6 Series Editors: Georges Martyn · Mortimer Sellers Ulrike Müßig Editor Reconsidering Constitutional Formation I National Sovereignty A Comparative Analysis of the Juridification by Constitution Studies in the History of Law and Justice Volume 6 Series editors Georges Martyn University of Ghent , Gent , Belgium Mortimer Sellers University of Baltimore , Baltimore , Maryland, USA Editorial Board António Pedro Barbas Homem, Universidade de Lisboa Emanuele Conte, Università degli Studi Roma Tre Gigliola di Renzo Villata, Università degli Studi di Milano Markus Dirk Dubber, University of Toronto William Ewald, University of Pennsylvania Law School Igor Filippov, Moscow State University Amalia Kessler, Stanford University Mia Korpiola, Helsinki Collegium for Advanced Studies Aniceto Masferrer, Universidad de Valencia Yasutomo Morigiwa, Nagoya University Graduate School of Law Ulrike Muessig, Universität Passau Sylvain Soleil, Université de Rennes James Q.Whitman, Yale Law School The purpose of this book series is to publish high quality volumes on the history of law and justice. Legal history can be a deeply provocative and infl uential fi eld, as illustrated by the growth of the European universities and the ius commune, the French Revolution, the American Revolution, and indeed all the great movements for national liberation through law. The study of history gives scholars and reformers the models and cour- age to question entrenched injustices, by demonstrating the contingency of law and other social arrangements. Yet legal history today fi nds itself diminished in the universities and legal academy. Too often scholarship betrays no knowledge of what went before, or why legal institutions took the shape they did. This series seeks to remedy that defi ciency. Studies in the History of Law and Justice will be theoretical and refl ective. Volumes will address the history of law and justice from a critical and comparative viewpoint. The studies in this series will be strong bold narratives of the develop- ment of law and justice. Some will be suitable for a very broad readership. Contributions to this series will come from scholars on every continent and in every legal system. Volumes will promote international comparisons and dialogue. The purpose will be to provide the next generation of lawyers with the models and narratives needed to understand and improve the law and justice of their own era. The series includes monographs focusing on a specifi c topic, as well as collec- tions of articles covering a theme or collections of article by one author. More information about this series at http://www.springer.com/series/11794 Ulrike Müßig Editor Reconsidering Constitutional Formation I National Sovereignty A Comparative Analysis of the Juridifi cation by Constitution This project has received funding from the European Union’s Seventh Framework Programme for research, technological development and demonstration under grant agreement no. 339529. ReConFort is a research project in the fi eld of legal history (ERC-AG-SH6 – ERC Advanced Grant – The study of the human past). The positions expressed are those of the authors and do not necessarily refl ect the offi cial opinion of the ERC or the European Commission. Editor Ulrike Müßig Advanced Grantee of the ERC Chair of Civil Law German and European Legal History University of Passau Passau , Germany ISSN 2198-9842 ISSN 2198-9850 (electronic) Studies in the History of Law and Justice ISBN 978-3-319-42404-0 ISBN 978-3-319-42405-7 (eBook) DOI 10.1007/978-3-319-42405-7 Library of Congress Control Number: 2016950195 © The Editor(s) (if applicable) and The Author(s) 2016. This book is published open access. 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All commercial rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfi lms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specifi c statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer International Publishing AG Switzerland Acknowledgements This volume reports on the fi rst research results of the ERC Advanced Grant ReConFort, Re considering Con stitutional F o r ma t ion. The transdisciplinary project deals with selected constitutional discourses in eighteenth and nineteenth century Europe and focuses on the experimental ambiguity or indetermination of constitu- tional texts with regard to state-organisational core elements. At the invitation of the University of Macerata from 9 to 11 March 2015, the post docs and myself as prin- cipal investigator presented the research results on national sovereignty. The essays of this volume rely on the elaborated version of the papers given in Macerata. This book wouldn’t have come into existence without the help of many I express my warmest thanks here. I am particularly grateful to Luigi Lacché (Macerata) who invited us for the spring conference 2015; to Brecht Deseure (Brussels), Giuseppe Mecca (Macerata) and Anna Tarnowska (Torún) for their excellent commitment to the project, to Shavana Musa (Manchester) for her native speaker’s correction of my texts and to the doctoral students (Franziska Meyer, Passau; Joachim Kummer, Berlin) for their support with sources and literature. My thanks also go to the organ- isational masterminds of ReConFort Stefan Schmuck (Passau) and Elisabeth Schneider (secretary at my chair) who gave much of their time to bring my ideas into life. Passau, July 2016 Ulrike Müßig v Contents Juridification by Constitution. National Sovereignty in Eighteenth and Nineteenth Century Europe .................................................................... 1 Ulrike Müßig 1 On ReConFort’s Research Programme in General ................................ 3 2 Method of Comparative Constitutional History .................................... 5 2.1 Targeted Sources of ReConFort .................................................... 5 2.2 Methodological Challenges: Finding the Tertia Comparationis ... 6 2.3 Constitutionalisation by Public Sphere ......................................... 7 2.3.1 Press Media as Roadster of Politicisation ......................... 7 2.3.2 Importance of Cross-Border News: The American Revolution in the Polish Public Discourse ........................ 9 3 References to the National Sovereignty in the Historic Discourses of the Eighteenth and Nineteenth Century Europe ................................ 13 3.1 In General: The Nation’s Start as Singular State Organisational Legal Point of Reference ...................................... 13 3.2 The Various Interpretations of National Sovereignty in the Works of Sieyès .................................................................. 18 3.2.1 Anti-estate Societal Meaning of National Sovereignty ..... 19 3.2.2 Anti-monarchical Meaning of National Sovereignty ........ 20 3.2.3 The National Sovereignty as Idea or Principle of an “ordre nouveau” ....................................................... 21 3.3 Openness of the Political Vocabulary of 1789 for the Rankly Oriented Use of Nation by the French parlements ..... 27 3.4 The Nation in the Polish May-Constitution 1788 ......................... 29 3.4.1 Old Republicanism as an Integral Part of the Juridification by Constitution............................................ 29 3.4.2 The Procedural Openness of May Constitution as Reflex onto the Juridification of National Sovereignty .................................................... 33 vii viii Contents 3.5 National Sovereignty in the Cádiz Constitution 1812 .................. 35 3.5.1 Sovereignty of the Spanish Nation ( nación española ) ...... 35 3.5.2 Late Scholastic Concepts of the Transfer of Sovereignty ( translatio imperii ) or the Nation as Moral Entity ( cuerpo moral ) in the Cádiz