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Zeitschri des Max-Planck-Instituts für europäische Rechtsgeschichte
Journal of the Max Planck Institute for European Legal History
Rechts R
g
geschichte
Rechtsgeschichte
Legal History
www.rg.mpg.de
http://www.rg-rechtsgeschichte.de/rg21
Rg 212013 16 – 30
Milan Kuhli
Power and Law in Enlightened Absolutism –
Carl Gottlieb Svarez’ Theoretical and Practical
Approach
Dieser Beitrag steht unter einer
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Abstract
The term Enlightened Absolutism reflects a
certain tension between its two components. This
tension is in a way a continuation of the dichotomy
between power on one hand and law on the other.
The present paper shall provide an analysis of these
two concepts from the perspective of Carl Gottlieb
Svarez, who, in his position as a high-ranking
Prussian civil servant and legal reformist, had
unparalleled influence on the legislative history
of the Prussian states towards the end of the 18th
century. Working side-by-side with Johann Hein-
rich Casimir von Carmer, who held the post of
Prussian minister of justice from 1779 to 1798,
Svarez was able to make use of his talent for
reforming and legislating. From 1780 to 1794 he
was primarily responsible for the elaboration of
the codification of the Prussian private law – the
»Allgemeines Landrecht für die Preußischen Staa-
ten« in 1794. In the present paper, Svarez’ approach
to the relation between law and power shall be
analysed on two different levels. Firstly, on a
theoretical level, the reformist’s thoughts and re-
flections as laid down in his numerous works,
papers and memorandums, shall be discussed.
Secondly, on a practical level, the question of the
extent to which he implemented his ideas in
Prussian legal reality shall be explored.
□
×
Milan Kuhli
*
Power and Law in Enlightened Absolutism –
Carl Gottlieb Svarez’ Theoretical and Practical
Approach
I. Introduction
The term Enlightened Absolutism reflects a cer-
tain tension between its two components. This
tension is in a way a continuation of the dichoto-
my between power on one hand and law on the
other. The present paper shall provide an analysis
of these two concepts from the perspective of Carl
Gottlieb Svarez, who, in his position as a high-
ranking Prussian civil servant and legal reformist,
has had unparalleled influence on the legislative
history of the Prussian states towards the end of
the 18
th
century. Working side-by-side with Johann
Heinrich Casimir von Carmer, who held the posts
of Silesian minister of justice from 1768 to 1779
and Prussian minister of justice from 1779 to 1798,
Svarez was able to make use of his talent for
reforming and legislating. From 1780 to 1794 he
was primarily responsible for the elaboration of
the codification of the Prussian private law – the
»Allgemeines Landrecht für die Preußischen Staaten«
in 1794 (Allgemeines Landrecht – ALR) and the cor-
responding dra entitled »Allgemeines Gesetzbuch
für die Preußischen Staaten« (Allgemeines Gesetzbuch
– AGB) in 1791.
Carl Gottlieb Svarez was an advocate of the
new school of natural law and thus convinced
of the possibility of every circumstance in life to
be governed by rules. At the same time, however,
he felt deep loyalty towards the absolute monarch,
which was not only due to his position as civil
servant. The tension between the law and the
ruler’s power entailed by these convictions shall
be the topic of the present analysis. Svarez’ ap-
proach to the relation between law and power
shall be analysed on two different levels. Firstly, on
a theoretical level, the reformist’s thoughts and
reflections as laid down in his numerous works,
papers and memorandums, shall be discussed
(section II). Secondly, on a practical level, the
question of the extent to which he implemented
his ideas in Prussian legal reality shall be explored
(section III).
II. Svarez’ theoretical concept of power and
law
Svarez produced a wide range of theoretical
material reaching from lectures to letters and
memorandums as well as papers directed at the
general public. The following analysis of his
views on power and law shall be based mainly on
the so-called Crown Prince Lectures. These are
lectures given by Svarez between 1792 and 1793
as an introduction to state affairs and jurisprudence
for the crown prince, later King Frederick Wil-
liam III.
1
1. The monarch’s obligations
The starting point for Svarez’ thoughts about
power and law is the social contract which he sees
as the foundation of the state – a view that was
widely shared among his contemporaries. Accord-
ing to him, the regent installed by the social
contract has the task of governing his subjects
according to the law and for the purpose of the
state (Staatszweck).
2
The subjects in turn pledge
to obey their regent in accordance with the law.
3
Since the actions of the regent are informed by the
purpose of the state the idea of the social contract –
as seen by Svarez – blends in with the Enlightened
Absolutism of the 18
th
century.
4
* Dr. jur. Dr. phil. Milan Kuhli, is a
Research Fellow at the Cluster of
Excellence »Formation of Normative
Orders« at the Goethe University
Frankfurt am Main. – This paper is
based on a monograph (M
K, Carl Gottlieb Svarez und das
Verhältnis von Herrscha und Recht
im aufgeklärten Absolutismus
[Studien zur europäischen Rechts-
geschichte 272], Frankfurt am Main:
Vittorio Klostermann 2012).
1 K (2012) 23 et seq.
2 Svarez, Crown Prince Lectures, in:
C /K (1960) 582.
3 Ibid. 7. – See B (1966) 61–62.
4 See R (1962) 523 et seq.
Rg 21 2013
16 Power and Law in Enlightened Absolutism – Carl Gottlieb Svarez’ Theoretical and Practical Approach
Svarez was convinced that the main purpose of
the state derives from the juxtaposition of civil
society on one hand and the deficits of the state
of nature on the other hand. In his opinion, the
state is, on one hand, meant to protect each of its
members against any violent attack on their person
and property perpetrated by a third party, and, on
the other hand, to promote collective happiness.
5
This broad concept of the purpose of the state goes
beyond Rousseau’s idea of the state’s primary
purpose being to guarantee safety and peace.
6
Interestingly, Svarez does not refer to any moral
commitment to do whatever will promote the
happiness of fellow citizens as the underlying
principle of the extended purpose he sees for the
state. He rather deduces that purpose directly from
the social contract.
7
In his Crown Prince Lectures, Svarez asserts that
no form of government has as many visible advan-
tages as monarchy.
8
It has in some cases been
concluded from this statement that Svarez was a
definite advocate of absolute monarchy and a
definite opponent to any form of constitutional
arrangement.
9
However, this opinion cannot be
subscribed to that easily. Instead, it has to be
stressed that Svarez’ positive opinion on absolute
monarchy basically stems from a comparison of
this form of government with other possibilities. It
is hence possible that Svarez did indeed hold a
certain degree of mistrust against absolute mon-
archy despite the fact that he witnessed the historic
experience of the Enlightened Absolutism of Fred-
erick the Great.
10
Consistent with the political theory of natural
law, however, the fact that in absolute monarchy
the state authority resides solely with the monarch
does not lead Svarez to the conclusion that the
monarch may act completely without bounds.
11
Although it is true that Svarez does not call for any
restriction of the monarch’s power in terms of
including representatives of the people, the estates
of the country or any other authority in the govern-
ment,
12
he does point out a number of obligations
the monarch shall be subject to. As mentioned
above, he shall, for instance, pursue the purpose of
the state,
13
and hence his action shall always be
aimed at increasing general welfare.
14
Apart from
that, the monarch’s power shall always be subject
to the law
15
– this principle was later enshrined in
§ 22 of the ALR.
According to Svarez’ concept, the rule of law
has many different implications. For example, it
entails the prohibition of retroactivity so that legal
rules must not be applied to cases that took place
before the respective rule was established.
16
Even
Svarez’ remarks on so-called Machtsprüche (›dic-
tums‹) can, to a certain extent, be deduced from
the principle of the rule of law.
17
A Machtspruch
consisted of an authoritative decision by the mon-
arch through which he could intervene in on-
going judicial proceedings in civil law matters
either by giving a ruling himself or by instructing
the court to come to a certain decision.
18
The term
Machtspruch was used as of the end of the 17
th
cen-
tury, however, its first component Macht (›power‹)
did not refer to any violent act but merely to the
claim of exerting sovereign power.
19
Svarez holds
that Machtsprüche must not be binding.
20
As an
explanation he refers to the need of protecting the
Prussian subjects’ civil liberties.
21
A Machtspruch
issued by the monarch would endanger those
liberties since such a decision could well be wrong
in substance. Svarez argues that a monarch can
neither be expected nor required to know the
details of every single legal rule, and that in
addition to that, the monarch would be prevented
from fully fulfilling his task as governor if he were
required to intervene in the civil justice system.
22
5 Svarez, Crown Prince Lectures, in:
C /K (1960) 464. –
See S (1885) 286; W (1963)
450–451.
6 R (2003) 16–17. – See W
(1963) 446–447.
7 Svarez, Lecture Ȇber den Zweck des
Staats«, in: C /K
(1960) 642.
8 Svarez, Crown Prince Lectures, in:
C /K (1960) 475.
9 H (1998) 75–76.
10 See B (1985) 95 et seq.
11 See L (1998) 24–25.
12 C (1958) 34.
13 See C (1961) 20; L (1998)
24–25.
14 Svarez, Crown Prince Lectures, in:
C /K (1960) 9.
15 Ibid. 246. – See L (1986a) 792.
16 C (1958) 36 et seq.
17 T (1965/66) 11.
18 See Svarez, Crown Prince Lectures,
in: C /K (1960) 236.
19 B (1903) 252; F
(1996) 101–102.
20 Svarez, Crown Prince Lectures, in:
C /K (1960) 236.
21 Ibid. 236 et seq., 616 et seq.; see
F (1996) 87 et seq.
22 Svarez, Crown Prince Lectures, in:
C /K (1960) 590.
Recherche research
Milan Kuhli 17
2. No legal obligation on the monarch
The fact that, according to Svarez, the regent is
subject to a number of obligations does not neces-
sarily indicate what normative effect such bounds
could have. In his works, Svarez repeatedly creates
the impression that no earthly authority could
implement the monarch’s obligations. Such an
authority is certainly not meant to be a single
judge – Svarez deems a judge competent to judge
over the regent only in certain areas such as fiscal
matters.
23
Nor are the subjects meant to play the
role of an authority charged of supervising the
implementation of the monarch’s obligations, ac-
cording to Svarez, and they certainly do not have
the right to resist against acts by which the mon-
arch violates his obligations.
24
In the light of such
statements it is difficult to understand the reform-
ist’s denial of any binding nature to acts through
which the monarch violates the obligations that
derive from natural law – such as Machtsprüche.
25
Affirmations such as the latter seem to justify
resistance by the subjects, but Svarez does at no
point mention resistance as a valid consequence.
The fact that certain acts at the hands of the
monarch may not be binding does not entail the
subjects’ right to resist against that act. Hence, the
regent is subject to certain obligations, a violation
of which does not necessarily lead to any sanc-
tion.
26
Svarez’ views on Machtsprüche can be re-
ferred to once more in order to illustrate the
separation between the non-binding nature of
certain acts and the (lack of a) right to resist by
the subjects. On one hand, the reformist stressed
that Machtsprüche shall not be legally binding
27
whilst on the other hand he constantly insisted that
the judge as well as the party to the proceedings
who is affected by the Machtspruch are under the
obligation to carry it out.
28
Svarez’ strict distinc-
tion between the non-binding nature of certain
acts and the subjects’ duty to obey their regent
shows a striking similarity with Christian Wolff’s
ideas.
29
For Svarez, the prohibition of resistance is a
consequence of the social contract, according to
which, in his view, the right to decide whether a
certain law is suitable and applicable resides solely
with the legislative authority. The subjects in turn
have no right to express their subjective view on
the validity of a legal rule by refusing to obey the
monarch.
30
They do, however, have the right to
form and express their own opinion in public as
long as in doing so they do not compromise the
peace and order of the state.
31
If Svarez’ concept
does not include an external authority in charge of
sanctioning violations of natural law on the part of
the regent, the only such authority must be the
regent’s common sense.
32
The monarch’s reason-
able actions in accordance with the purpose of the
state are what distinguishes Enlightened Absolute
Monarchy from despotism.
33
According to Svarez
it is thus necessary to call upon the monarch’s
common sense, and hence it is interesting to
consider how he intended to compensate for the
fact that the monarch’s obligations under natural
law were not enforceable. This shall be done in the
following section.
3. Compensation for the lack of legal obligation
Svarez was aware of the fact that the monarch’s
common sense was a feeble guarantee.
34
His mis-
trust led him to invoke non-legal means of inciting
the monarch to act reasonably. For instance, his
work contains numerous hints directed at the
regent warning him to apply his common sense
for the sake of the political survival of his dynasty
in power.
35
For although Svarez rejected the idea
of the subjects’ right to resist against acts of royal
power, he was well-aware of the actual possibility of
23 See ibid. 132 et seq.
24 See T (1937) 378; H
(1998) 70.
25 Svarez, Crown Prince Lectures, in:
C /K (1960) 236.
26 L (1998) 24–25.
27 Geheimes Staatsarchiv Preußischer
Kulturbesitz (Berlin), Hauptabtei-
lung I, Repositur 84, Abteilung XVI,
number 7, vol. 80, folium 2v.
28 Geheimes Staatsarchiv Preußischer
Kulturbesitz (Berlin), Hauptabtei-
lung I, Repositur 84, Abteilung XVI,
number 7, vol. 9, folium 168r.
29 W (1968), Pars VIII, Capitulum
VI, § 1044–1045 (p. 818–819). – See
H (1998) 70; H
(1985) 54–55; L (1986b) 184;
K (2012) 89–90.
30 Svarez, Crown Prince Lectures, in:
C /K (1960) 586 et
seq.
31 Ibid. 219.
32 Ibid. 458 et seq.
33 C (1958) 35.
34 See L (1998) 26.
35 Svarez, Crown Prince Lectures, in:
C /K (1960) 220. –
See T (1965/66) 11; B
(1985) 96.
Rg 21 2013
18 Power and Law in Enlightened Absolutism – Carl Gottlieb Svarez’ Theoretical and Practical Approach
single acts of resistance or even a collective revolu-
tion.
36
He even made use of this prospect when
teaching the later King Frederick William III. in
order to convince him of the necessity of observing
the bounds set to the ruling authority by natural
law. It must be stressed though that Svarez merely
describes the possibilities of resistance and revolu-
tion – he does not deem them legally acceptable
nor does he advocate them in any way.
The hints at possible resistance and revolution
must have impressed the later King Frederick
William III, but he was possibly even more im-
pressed by his teacher’s references to posterity
forming its own judgement about former mon-
archs.
37
Such arguments were especially convinc-
ing to the crown prince since there were cases at
the time in Prussia where decisions made by a
former monarch were revised by his successor on
the Prussian throne. In 1786, for instance, Freder-
ick William II. gave order to rehabilitate several
high-ranking judges who had been punished by
Frederick the Great for an alleged false judge-
ment.
38
It is true that in doing so, Frederick
William II. did not explicitly accuse his predecessor
personally of an incorrect decision – the nephew of
Frederick the Great did not call the admissibility of
the decision made by his uncle into question but
rather claimed that the decision had been based on
incorrect reports and thus brought about surrepti-
tiously.
39
However, Frederick William II.’s action
was a clear sign that decisions made by a certain
regent did not necessarily persist in the eyes of
posterity. It was the function of posterity as a judge
of former monarchs that Svarez used as a means of
warning during the Crown Prince Lectures.
However, Svarez’ educational approach was not
limited to his personal influence on the future
monarch during the Crown Prince Lectures. His
efforts are also visible in that he advocated the idea
of third persons acting as advisors to the monarch.
Although it is true that Svarez was against any
model in which third persons would be granted
direct political participation in the monarch’s ex-
ercise of power on one hand, he did on the other
hand wish to give third persons the opportunity of
assisting the monarch by offering him advice on
his work. For example, this is true for the Prussian
estates of the country and the Gesetzkommission
(›law commission‹), the working group in charge
of elaborating a new code of laws. In Svarez’ view,
none of these institutions were meant to obtain the
right to participate directly in the Prussian legis-
lative process
40
– for instance through the right of
approval – but he repeatedly stresses the impor-
tance of the estates of the country and the Gesetz-
kommission as an advisory body to the monarch.
41
Svarez also believed that the subjects as a whole
should fulfil an advisory function. It is true that,
just like the estates of the country and the Gesetz-
kommission, they do not have a documented right
to participate in the exertion of power.
42
However,
Svarez accords them a decisive role in the forma-
tion of public opinion, which he believes is not
necessarily a top-down process, but should also
work in the opposite direction. This explains the
reformist’s relatively moderate views on the free-
dom of press.
43
In addition to that, he called for
legal rules to be formulated in a clear and coherent
way so as to give the individual subjects the
possibility of being informed about the current
legal situation.
44
From the information laid down
so far, however, one cannot conclude that Svarez’
theorems were indeed fully implemented in legal
reality – especially in the codification of Prussian
civil law. The question of the extent to which the
reformist’s views about the relation of power and
law entered the AGB and the ALR shall be dis-
cussed in the following section.
III. Practical implementation of Svarez’
reflections
The question about the extent to which Svarez’
theoretical views were actually implemented can-
not be answered without considering the ALR, in
whose creation he played a unique and decisive
role. Although it is true that Carmer’s staff respon-
sible for the codification of the Prussian laws com-
prised several people, Svarez was the one who took
36 K (2012) 91. – See Svarez, Crown
Prince Lectures, in: C /
K (1960) 586.
37 Svarez, Crown Prince Lectures, in:
C /K (1960) 238.
38 See K (1998) 160–161.
39 B (1903) 268 et seq.
40 Svarez, Crown Prince Lectures, in:
C /K (1960) 16 et
seq.
41 Ibid. 479.
42 See K (1981) 27.
43 For further information on Svarez’
views on censorship and the freedom
of press see K (2012) 107 et seq.
44 Svarez, Crown Prince Lectures, in:
C /K (1960) 602. –
See T (1937) 369.
Recherche research
Milan Kuhli 19
the lead.
45
He was the one who draed the first
version of the code of laws.
46
He was also the one
who assessed the results of the participation of the
general public in the legislative procedure in his so-
called revisio monitorum.
47
The dra was then
revised on the basis of his assessment, finally
resulting in the AGB. Even during the final review
Svarez’ contribution was by far the largest.
48
The following section shall offer an introduc-
tion to the history of the creation of the ALR
(section 1). Thereaer, the actual question about
the extent to which Svarez was able to implement
his ideas on power and law in the context of the
judicial reform shall be explored (section 2). Here,
a distinction must be made between the concept
underlying the AGB (section 2.A) and that which
was later adopted in the ALR aer the final review
which had been ordered by Frederick William II.
(section 2.B).
1. The creation of the ALR
There are not many pieces of legislation whose
creation was as long a process as that of the ALR.
49
Under the influence of natural law, the idea of
codifying nearly all areas of the subjects’ lives
emerged in Prussia as early as the 17
th
century.
50
What was called for was a comprehensible and
clearly structured code of laws that would be
written in simple language and be void of any type
of academic discussion.
51
Apart from that, the new
school of natural law, which developed in Ger-
many from the mid 18
th
century on,
52
began in-
creasingly drawing on ancient German sources of
law.
53
The pursuit of reforms in Prussia was
further sustained by the wish to correct certain
deficits of the legal system.
54
Efforts to create a new civil legislation as well as
to improve Prussian legal proceedings had already
been made under Frederick I. and Frederick Wil-
liam I.
55
However, for several reasons, these basic
approaches were just as fruitless as the attempts
made by their successor Frederick the Great to-
gether with the Prussian minister of justice Samuel
von Cocceji during the early years of the former’s
reign.
56
Cocceji’s successors to the post of Prussian
minister of justice, Philipp Joseph von Jariges and
Carl Joseph Maximilian von Fürst und Kupferberg,
hardly made any effort to revisit Cocceji’s reformist
ideas. During the Seven Years War from 1756 to
1763, which constituted an existential danger to
the Prussian state, such attempts would most likely
have failed in any case.
57
Reform efforts were only resumed in 1780.
58
Frederick the Great had increasingly been faced
with complaints about the slow march of the
Prussian judiciary, so that the mistrust he had
always held in the legal profession turned into
outright dissatisfaction.
59
One court case became
a catalyst for the revival of efforts to reform the
judiciary: A case that entered German legal history
as the so-called Müller-Arnold-Prozess.
60
By inter-
vening in this case, Frederick the Great caused a
legal scandal. The monarch accused the respective
judges of having handed down a false judgement –
wrongly as it later turned out – to the detriment of
a miller and in favour of a nobleman. Frederick II.
saw this case as a confirmation of his mistrust of
the Prussian judicial system and in late 1779
ordered the dismissal and incarceration of several
high-ranking judges as well as the removal of the
minister of justice Fürst und Kupferberg
61
who
was according to him responsible for the state of
the system.
62
On 25 December 1779 Johann Hein-
rich Casimir von Carmer was named the new
minister of justice.
63
Carmer seemed to the king
to be suitable for the post. On one hand he had
already voiced several ideas for reforming legal
proceedings during the preceding years, and on
the other hand he was no longer needed in his
previous position as Silesian minister of justice
since he had already succeeded in regulating legal
45 See H (1915) 397.
46 H (1996) 9; H
(1889) 8.
47 H (1889) 8 et seq.
48 S (1995) 86–87; S
(1885) 394–395.
49 C (1958) 12.
50 S (1976) 83; see K
(1988) 21.
51 C (1958) 10–11.
52 C, in: C /K
(1960) XI, XII.
53 K (2003) 183.
54 See O (1987) 80; D (1960)
133.
55 M (1992) 32 et seq.; T
(1937) 361.
56 See K (2012) 122 et seq.
57 G (2002) 114.
58 S (1976) 86.
59 H (1996) 3. – See B
(1999) 17; S (1926) 23.
60 K (1996) 140; B (1996)
46.
61 H (1996) 4.
62 B (1999) 18.
63 P (1938) 353; B (1999)
19.
Rg 21 2013
20 Power and Law in Enlightened Absolutism – Carl Gottlieb Svarez’ Theoretical and Practical Approach
matters in that province so that his talent for
organising and legislating could now be put to
use for the whole state of Prussia.
64
Aer appointing him, Frederick immediately
instructed Carmer to correct the deficits of the
legal system. He did not, however, at the time
envisage a reform of procedural and substantive
law.
65
To him the judicial reform was rather to
revolve around changes on the staff level, namely
the introduction of new criteria for the appoint-
ment of judges and the approval of advocates.
66
For decades, the king had attributed the short-
comings of criminal proceedings to personal fail-
ure on the side of the judiciary staff rather than to
any deficit of the underlying laws.
67
In the end, it
was Carmer who initiated the codification, not the
king.
68
Carmer was opposed to the idea of limiting
reform to the staff level from the very beginning.
69
Finally, he succeeded in convincing Frederick II.
that a general review of procedural and substantive
law was necessary.
70
On 14 April 1780 the king
issued the cabinet order putting Carmer in charge
of implementing a general reform of the legal
system.
71
The fi rst step of the new minister of justice’s
legislative work was the reform of civil law pro-
ceedings.
72
As for the planned reform of substan-
tive law, the cabinet order issued on 14 April 1780
included plans to create codes of provincial law as
well as a general code of law for the Prussian states.
The latter was to be a subsidiary to the codes of
provincial law and hence to be applied only in
cases of loopholes in those codes.
73
This measure
was meant to harmonise the legislations of the
different Prussian states without altogether elimi-
nating state and provincial legislations.
74
Econo-
my of procedure was one of the aims of all those
reforms, but in addition to that they were also
meant to satisfy the needs of non-jurists in search
of legal protection:
75
First of all, the laws were to
be written in German and free of any artificial
Latin terms, making it easier for the subjects to
understand them; secondly, the new simplified
language as well as enhanced completeness of the
legal rules was meant to diminish the number of
disputes and legal proceedings as a whole.
76
The
aim was not necessarily to create a new body of
laws, but merely to compile and revise existing
laws.
77
According to the cabinet order of 14 April
1780, the task consisted in collecting the hitherto
existing legal rules, which stemmed mainly from
the roman tradition, measuring them against the
standards of natural law and adapting them to the
characteristics of society at the time.
78
Svarez, who had accompanied Carmer to Berlin
as a member of his staff, co-authored the first dra
of the codification of Prussian civil law,
79
which
was published during the period from 1784 to
1788.
80
Meanwhile, the Prussian and German
educated public were also involved in the legisla-
tive process (external experts were asked for advice
and an academic contest was held).
81
During the
phase of public involvement, Frederick the Great
passed away (17 August 1786).
82
He had promised
in the cabinet order of 14 April 1780 to protect
Carmer and his staff against any possible rejection
of their plans.
83
Following the king’s death and
Frederick William II.’s accession to power, how-
ever, their position was less than certain. Carmer
and Svarez had enjoyed the late king’s trust since
Frederick II. had been fully convinced of the
philosophy of Enlightenment and the need to
64 S (1885) 151.
65 See B (1999) 19.
66 S (1926) 27.
67 K (1998) 149.
68 K (2003) 185.
69 B (1903) 260.
70 S (1926) 27.
71 Frederick II., cabinet order (14 April
1780), in: H (1996) 37 et
seq. – See H (1994) 1449–1450;
B (1969) 269.
72 S (1926) 27–28; C
(1965) 3; C (1958) 16; T
(1965/66) 5–6.
73 Frederick II., cabinet order (14 April
1780), in: H (1996)
39–40. – See T (1965/66) 7;
B (1999) 23.
74 Frederick II., cabinet order (14 April
1780), in: H (1996)
39–40. – See C (1958) 13–14.
75 See C (1965) 3.
76 See S (1976) 86; G
(2002) 116.
77 See H (1988) 43.
78 S (1976) 86; H
(1996) 8–9; see H (1994)
1449–1450; see B (1996) 49.
79 B (1842) 8; H
(1996) 9; M (1986) 59.
80 S (1994) 457. – See B
(1966) 47; B (1999) 58 et seq.;
G (1988) 5.
81 For further information about the
reasons for this change of the original
plan and for involving the public see
K (2012) 147 et seq.
82 W (1963) 447.
83 Frederick II., cabinet order (14 April
1780), in: H (1996) 41.
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Milan Kuhli 21
transfer those ideas into legal reality. Frederick
William II. can instead be characterised as a mon-
arch who was far less enthusiastic about Enlight-
enment.
84
At first, however, the process of codification
continued. Starting in the summer of 1787, Carm-
er’s staff began evaluating the results of the public’s
participation.
85
Svarez delivered his opinion on
the reports handed in in his so-called revisio mo-
nitorum.
86
On the basis of that work, the dra was
revised until the spring of 1791.
87
The revised
work was called »Allgemeines Gesetzbuch für die
Preußischen Staaten« and was published aer having
been patented on 20 March 1791.
88
It was planned
to enter into force on 1 June 1792,
89
but history
took a different turn. Through a cabinet order
issued on 18 April 1792 Frederick William II.
imposed the suspension of the code.
90
He justified
his decision by referring to objections voiced by the
Silesian minister of justice Albrecht Leopold,
Carmer’s successor in Breslau.
91
On 9 April 1792,
Danckelmann had submitted a promemoria advis-
ing the king to suspend the code for an indetermi-
nate period of time, arguing mainly that the
Prussian general public had not had sufficient time
to become acquainted with its content.
92
At the time, the suspension by the king was
possibly interpreted as the definite failure of the
whole project that had brought about the AGB,
93
however, the king – as well as Danckelmann – did
most probably not intend to definitely abrogate the
code of laws. The fact that the suspension ordered
by Frederick William II. was not limited to a
certain period of time only suggests that he was
unable to estimate the amount of time it would
take to communicate the new laws as well as to
apply certain corrective changes to the code which
had even been proposed by the Silesian minister of
justice. Moreover, it is important to consider the
fact that in the spring of 1792 the king was faced
with more urgent problems than putting the code
into force:
94
Ever since 1791, Prussia was on the
verge of being involved in a war with France – a
war which actually broke out only a few days aer
the cabinet order of 18 April 1792 was issued.
95
Hence, a number of facts indicate that for Freder-
ick William II. the reform of the Prussian judicial
system was not a priority in the spring of 1792,
which is why he did not object to the idea of
postponing the entering into force of the AGB.
There is certainly no evidence that the king’s aim
was to undermine the project of codification as a
whole. Nor are there any grounds for the assump-
tion that Frederick William II. might have been
acting under the influence of other political forces
(such as his companions Johann Rudolf von Bi-
schoffwerder or Johann Christoph Wöllner for
example).
96
The reformists reacted immediately to the order
of suspension,
97
but at first Frederick William II.
insisted on his decision.
98
The fact that the project
was reverted to relatively soon is, among other
things, due to the second polish partition, which
was agreed between Prussia, Austria and Russia in
January 1793.
99
The partition of Poland entailed
an expansion of the Prussian dominion,
100
which
in turn lead to the Hohenzollern monarchy being
in doubt as to which laws the Prussian judges and
civil servants were to apply in the newly annexed
province of Southern Prussia.
101
When the AGB
became a possible alternative in this scenario,
Carmer and his staff saw a fresh opportunity to
advocate for the application of their work in the
whole of Prussia. Aer a long period of discus-
84 H (1996) 10.
85 S (1994) 457.
86 See B (1842) 9; K
(1998) 163–164; H (1889) 8;
W (1998) 92.
87 F (1996) 60.
88 H (1996) 10.
89 Publikationspatent (20 March 1791),
preamble, in: Allgemeines Gesetz-
buch für die Preussischen Staaten,
Erster Theil, Berlin 1791 (reprint:
Frankfurt am Main 1985), p. VI.
90 H (1996) 14.
91 Geheimes Staatsarchiv Preußischer
Kulturbesitz (Berlin), Hauptabtei-
lung I, Repositur 84, Abteilung XVI,
number 7, vol. 88, folium 10r. – See
S (1885) 354.
92 Geheimes Staatsarchiv Preußischer
Kulturbesitz (Berlin), Hauptabtei-
lung I, Repositur 84, Abteilung XVI,
number 7, vol. 88, folium 11r.
93 See H (1996) 14; S
(1885) 355–356.
94 See B (2001) 246; M
(2007) 129.
95 For further information on the
foreign policy constellation at the
time see M (1994) 542 et seq.
96 See K (2012) 160 et seq.
97 V (1972) 145.
98 Frederick William II., cabinet order
(5 May 1792) (Geheimes Staatsarchiv
Preußischer Kulturbesitz [Berlin],
Hauptabteilung I, Repositur 84,
Abteilung XVI, number 7, vol. 88,
folium 15r). – See B (1999) 247.
99 B (1966) 65; T (1965/66)
12; S (1994) 457;
B (1996) 92; H
(1889) 9; K (2008) 431.
100 See H (1998) 167; D
(2001) 279; B (1992)
330–331.
101 H (1996) 14–15.
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22 Power and Law in Enlightened Absolutism – Carl Gottlieb Svarez’ Theoretical and Practical Approach
sion,
102
Frederick William II. finally issued a royal
cabinet order on 17 November 1793, assigning
Carmer with the task of applying certain modifi-
cations to the code of law and fi nding a new title
for it.
103
According to the King, once those meas-
ures had been taken, the code could enter into
force in the whole of Prussia.
104
Aer the final
review, which was mainly carried out by Svarez,
105
was completed on 4 January 1794, the code was
patented and promulgated on 5 February 1794
with the title »Allgemeines Landrecht für die Preu-
ßischen Staaten«.
106
On the basis of this patent, the
essential elements of the ALR entered into force on
1 June 1794.
107
With its 19,000 articles this piece of legislation is
one of the most extensive codes of law of modern
history.
108
Its authors had had the intention of
providing legal rules for every possible circum-
stance that might become a matter of criminal
proceedings in any Prussian court or of a legal
dispute between subjects.
109
The ALR did not
cover procedural law, since that field was regulated
in a separate set of laws. Instead, it covered the
fields of mercantile law, company and labour law,
inheritance and family law, municipal, industrial
and building law, civil service law, feudal law,
canon law, and criminal law.
2. The concepts of power and law in the
Prussian code of laws
A. The concept of the AGB
The term »Gesetzbuch« (›code of law‹) contained
in the title of the AGB already suggests that what
was to be applied was not the law in its definition as
the sum of all existing legal norms, but rather the
single laws, i. e. the legal rules representing the
formalised will of the state.
110
Therefore, each
field of law – aer a period of three years even
provincial law
111
– was to be codified in single
legal rules. Accordingly, the AGB stipulated the
ultimate abrogation of customary law.
112
In a very
prominent position, namely in the very beginning
of the code, in § 1 of the introduction to the AGB
with regard to the rights and duties of the citizens
of the state, reference is made only to the rules
stated in the AGB or in special codes of law.
Moreover, the room for interpretation offered to
judges and academics was to be reduced.
113
In
cases in which the scope of a certain legal rule was
not clear, the only body authorised to determine its
applicability was to be the Prussian Gesetzkommis-
sion (§§ 50, 51 of the introduction to the AGB).
114
Thus, the concept underlying the AGB included
the rejection of traditional law as it had been in
force in the Prussian states up to that date as well as
an opposition to the authority of the judiciary to
interpret the rules in different ways. This conclu-
sion raises the question of whether the AGB did
indeed impose certain limits to the monarch him-
self, for in order to regulate the lives of the subjects
there might well have been a need to codify certain
rules that regarded the monarch as well. That was
the case with § 6 of the introduction to the AGB
for example,
115
which has been widely discussed
by scholars. It stipulated rules about the effects of
Machtsprüche spoken by the monarch, and was
deleted during the final review. More precisely, it
stipulated that no rights and no duties arose from
Machtsprüche that were spoken during an on-going
legal proceeding. The rule explicitly referred only
to civil law proceedings and hence did not apply to
criminal or disciplinary proceedings.
116
102 See K (2012) 164 et seq.
103 S (1885) 380 et seq.
104 Geheimes Staatsarchiv Preußischer
Kulturbesitz (Berlin), Hauptabtei-
lung I, Repositur 84, Abteilung XVI,
number 7, vol. 88, folium 45r–46r.
105 S (1995) 86–87; S
(1885) 394–395; H
(1996) 15.
106 Geheimes Staatsarchiv Preußischer
Kulturbesitz (Berlin), Hauptabtei-
lung I, Repositur 84, Abteilung XVI,
number 7, vol. 88, folium 193r.
107 In the newly annexed province of
Southern Prussia, the Allgemeines
Landrecht even entered into force at
an earlier date since there was a lack of
existing legal rules in that area at the
time (see K [1996] 140).
108 S (1994) 456.
109 L (1846) 46 et seq.
110 H (1988) 46–47.
111 Publikationspatent (20 March 1791),
in: Allgemeines Gesetzbuch für die
Preussischen Staaten, Erster Theil,
Berlin 1791 (reprint: Frankfurt am
Main 1985), p. VIII.
112 H (1988) 48, 65.
113 See ibid. 65.
114 See »Vo rl äufige Instruction für die zu
etablirende Gesetz Commission« (Ge-
heimes Staatsarchiv Preußischer Kul-
turbesitz [Berlin], Hauptabteilung I,
Repositur 84, Abteilung XVI, num-
ber 1, vol. 1, folium 13r–16v); Fre-
derick II., cabinet order (14 April
1780), in: H (1996) 40.
115 See W (1998) 101–102.
116 F (1996) 83, 101 et seq.;
S (1994) 460; C
(1961) 25; C (1965) 16 et seq.
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Milan Kuhli 23
Declaring Machtsprüche to be of non-binding
nature as § 6 did was a programmatic act against
such interventions in on-going legal disputes by
the monarch. However, the provision does not
equal a prohibition of Machtsprüche.
117
In this
respect, Svarez’ views on the duty of the judiciary
and the parties involved in a legal proceeding to
obey any Machtspruch, as laid down in the Crown
Prince Lectures, must be referred to. Here, the
reformist states clearly that the respective judge
or party to the proceedings shall have no right to
defy the Machtspruch.
118
This idea was to hold true
in reality even according to § 6 of the introduction
to the AGB, which can be deduced from the fact
that the introduction to the AGB does not com-
prise any provision to be applied in the case of a
Machtspruch being spoken by the king in violation
of § 6.
There is thus evidence that § 6 of the intro-
duction to the AGB was not meant to represent a
departure from Svarez’ theoretical concept accord-
ing to which the court was under the obligation of
obeying the king’s Machtspruch. The court did,
however, have the possibility of submitting a mo-
tion of reconsideration and hence suggesting to the
monarch to annul his Machtspruch. If the monarch
did not decide to do so, the Machtspruch remained
binding.
119
In that case, the respective party was
de facto forced to wait for the Prussian throne to
be passed on to the monarch’s successor and to
resubmit their motion of reconsideration to the
new king.
120
Hence, neither the king nor the
courts were the actual addressees of § 6 of the
introduction to the AGB.
121
It seems as if the
provision was meant to advise the litigant against
submitting a petition to the monarch in the first
place. Machtsprüche were undesirable but not ulti-
mately forbidden.
122
What would have been in the
spirit of § 6 instead was probably to some extent a
voluntary renunciation of Machtsprüche on the
king’s behalf. From this perspective, the provision
is certainly in line with Frederick II.’s views ex-
pressed in his political testaments written in 1752
and 1768.
123
The same holds true for § 12 and § 79 of the
introduction to the AGB respectively, both of
which were deleted from the code during the
final review, just as § 6.
124
§ 12 stipulated that
the Gesetzkommission was to participate in the
legislative process, and § 79 laid down that all laws
had to contribute to the purpose of the state. Just as
from § 6, no legal obligation for the king arose
from § 12 and § 79. Ultimately, all AGB provisions
that might have limited the king’s authority merely
suggest possible limitations on political or moral
grounds. § 6, § 12 and § 79 could only be enforced
by the monarch himself, since the AGB did not
provide for any external and independent institu-
tion with the authority to supervise the king to
such an extent. As long as the monarch did not
pronounce an opinion on the validity of a certain
provision, each act of royal authority would sug-
gest that he deemed the respective provision valid.
The king’s will still represented the ultimate
grounds for the validity of the law. The authority
to enact laws remained with the king despite the
new code.
125
At the same time, due to its non-
binding nature, the AGB cannot be called a con-
stitution in the post-revolutionary sense.
126
Thus,
Conrad’s view, according to which § 6, § 12 and
§ 79 of the introduction to the AGB can be called a
catalogue of fundamental rights (»Grundrechtskata-
log«),
127
cannot be subscribed to either. A code
that could have been annulled by the monarch
easily at any time, did not offer any room for
fundamental rights directed against the mon-
arch.
128
During the age of Absolutism – even
Enlightened Absolutism –, no rules could be de-
117 S (1993) 137 et seq.
118 Svarez, Crown Prince Lectures, in:
C /K (1960) 238.
119 S (1993) 158; S
(1885) 309 et seq.
120 Svarez, extractus monitorum (Gehei-
mes Staatsarchiv Preußischer Kultur-
besitz [Berlin], Hauptabteilung I,
Repositur 84, Abteilung XVI, num-
ber 7, vol. 72, folium 20r); S
(1885) 309 et seq.
121 See K (1998) 189.
122 F (1996) 103, 108.
123 See K (2012) 202 et seq.
124 Ibid. 219 et seq.
125 H (1996) 17.
126 L (1998) 45; F (1996)
128. – Different view: T
(1998) 317; P (1882) 56;
T (1937) 385 et seq.; T
(1967) 161; C (1965) 6 et seq.;
M (1986) 62–63.
127 C (1961) 26.
128 For this reason, F’ view is
to be rejected. According to her, the
AGB and ALR represented a first
guarantee of the fundamental rights
of civil liberties and equality
(F [2001] 55).
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24 Power and Law in Enlightened Absolutism – Carl Gottlieb Svarez’ Theoretical and Practical Approach
veloped which would subject the monarch to any
legal duty. Such rules only became accepted in
constitutional monarchy.
At the same time, however, the effect of the
public promulgation of political duties must not
be underestimated.
129
With provisions such as § 6,
§ 12 and § 79 of the introduction to the AGB, the
code constituted a publicly available document of
the self-discipline of monarchical power
130
and
hence it increased the political pressure to fulfil
those duties.
131
Aer all, the AGB does in its
provisions lay out certain guidelines for the king’s
actions. The provisions reflect the basic principles
about right and wrong, which according to Svarez
constitute a veritable fortress for the citizens’ civil
liberties.
132
Even if those principles about right
and wrong had no direct legal implications for the
current monarch’s actions, from the perspective of
the Prussian subjects hope remained that one of his
successors would put them into effect.
The provisions that publicly documented the
monarch’s self-discipline, however, were not the
only aspect of the AGB that functioned as guide-
lines for the king’s actions. The code also provided
for certain institutions to act as advisors to the king
in matters of legislation. In his Crown Prince
Lectures, for example, Svarez refers to the Gesetz-
kommission as the unpartisan voice of truth.
133
Accordingly, the high-ranking Prussian civil ser-
vants were to support the king with their knowl-
edge and skills not only in drawing up the judicial
reform itself, i. e. in compiling the new Prussian
code of laws. In addition to that, they were also
meant to be given the opportunity to advise the
king on any future amendment of the AGB (or
of the ALR respectively).
134
The estates of the
country in turn were not conceded an advisory
function comparable to that of the Gesetzkommis-
sion. Although it is true that in the Crown Prince
Lectures Svarez had stressed the advisory function
of the estates of the countries towards the king,
135
in political practice they did not have any general
consultative right on the legislature concerning the
whole of Prussia even at that time (1792/1793). The
AGB merely codified the rights of the estates of the
country in that it stipulated their role as local
authorities.
136
They were not an official advisory
body to the king.
As for the role of the subjects, however, the AGB
explicitly stressed their consultative function. It is
true that they were not meant to participate
actively in the exertion of state power.
137
Further-
more, the 1791 code of laws includes the pro-
hibition of fomenting public unrest by mocking
the laws – and a threat of punishment for those
who act in violation of this provision (§ 151 of the
20th title of the second part of the AGB).
138
At the
same time, however, the AGB provided for the
possibility of single subjects either voicing objec-
tions to existing legal rules or other royal orders
to the king or the leader of a department, or of
submitting suggestions for improvement in gen-
eral (§ 156 of the 20th title of the second part of the
AGB). Hence, public participation in assessing and
amending the laws was permitted – though cer-
tainly to a limited extent – in the name of general
welfare. This measure did not, of course, aim at
creating a general public discourse. The power of
acting as an advisory body was to remain with the
public authorities. It must, however, be stressed
that the subjects’ opinions were indeed taken into
account. This can be seen as a continuation of the
tendency that had started with the participation of
the public in the legislative process that led to the
creation of the AGB in the first place.
It can thus be concluded that the AGB does not
reflect any intention of legally binding the mon-
arch to fulfil his duties. All of the legal rules that
seem at first sight to legally subject the king to any
duty – including §§ 6, 12 and 79 of the introduc-
tion to the AGB, which were deleted in the course
of the final review – are void of any real legal
prohibition against him. The function of those
provisions is rather the promulgation of the re-
gent’s political duties. Nevertheless, uncertainty
remained from the perspective of the monarch as
129 See L (1998) 37.
130 See B (1985) 92–93.
131 See F (1996) 135.
132 Svarez, Lecture Ȇber den Einfluss
der Gesetzgebung in die Aulärung«,
in: C /K (1960) 636.
133 Svarez, Crown Prince Lectures, in:
C /K (1960) 480.
134 L (1998) 36–37; see S
(1993) 287.
135 Svarez, Crown Prince Lectures, in:
C /K (1960) 479 et
seq.
136 S (1998) 122; B
(1903) 275 et seq.
137 C (1965) 26.
138 See Svarez, Lecture »Vo r sc h läge zu
Censur Gesetzen« (Staatsbibliothek
zu Berlin Preußischer Kulturbesitz,
Handschrienabteilung, Manuscrip-
ta borussica, vol. 443, folium
272r–277v).
Recherche research
Milan Kuhli 25
to whether the provisions might possibly be mis-
interpreted by third persons. In this context, the
final review, which the three articles mentioned
above fell prey to, is of interest, and it shall thus be
discussed in the following section.
B. The relevance of the final review
As a result of the final review, which had been
ordered by Frederick William II., certain signifi-
cant changes were applied to the Prussian code
of laws distinguishing it from the AGB.
139
The
most obvious one was the modification of the
code’s title (»Allgemeines Landrecht für die Preußi-
schen Staaten«). The deletion of § 6, § 12 and § 79
of the introduction to the AGB was another im-
portant result of the final review. Changes were
also applied to certain provisions that were not
as fundamental, such as those concerning mor-
ganatic marriage or inheritance law for poorhouses
in cases in which the deceased was unmarried.
140
The latter modifications were of course of much
less political importance than the deletion of § 6,
§ 12 and § 79 of the introduction to the AGB.
However, even the elimination of those three
provisions of the introduction did not mean that
the general legal concept underlying the Prussian
code of laws suffered any fundamental change.
This is especially true for the ultimate deletion of
§ 6, the provision according to which the king
would renounce to speaking Machtsprüche. It has
been explained above that this provision did in no
way run counter to Svarez’ theoretical concept,
according to which the court was obliged to obey
any Machtspruch spoken by the monarch. Accord-
ing to the AGB, royal Machtsprüche would have
been undesirable but not forbidden. Hence, Fred-
erick William II. would not have faced any legal
impediment to issuing such a dictum.
The same holds true for § 12 and § 79 of the
introduction to the AGB,
141
which is why it can be
affirmed that the deletion of § 6, § 12 and § 79
would not have been necessary from a legal per-
spective. All of these provisions, however, carried
the inherent risk of being interpreted in a much
too extensive way or of being altogether misinter-
preted by third persons applying them at a later
point in time. Since the provisions stipulated the
prospect of royal acts losing their binding nature as a
possible consequence of their violation, they might
under certain circumstances have been misinter-
preted to the effect that subjects or members of the
judiciary were not obliged to obey when the King
issued a Machtspruch (§ 6), when a law was drawn
up without participation of the Gesetzkommission
(§ 12) or when a provision excessively limited the
subjects’ rights (§ 79 of the introduction to the
AGB). Apart from that, the three provisions bore a
certain potential of becoming central to large-scale
reform efforts.
142
Therefore, the reasons for the
modifications applied in the course of the final
review were probably not the actual content of the
affected provisions but rather their possible inter-
pretation by third persons.
143
In this respect, the events that took place at the
time in other European countries must also be
taken into consideration. The outbreak of the
French revolution for instance gave a clear picture
of what Enlightenment could ultimately lead
to.
144
Against this background, the Prussian view
on many issues must have changed significantly. In
1792, the king did indeed receive a number of
official letters from certain estates of the country
and regional governments reporting unrest among
the peasant population. Peasants had allegedly
declared that they were under no obligation to
provide any services to their landlords that were
not required by the AGB.
145
Given the events and
background of the French revolution, the authors
of the Prussian code of laws might well have been
suspected of importing revolutionary ideas into
Prussian society.
146
When Frederick William’s confidants began
discussing the final review, there was already a
strong indication that the provisions of the AGB
which were later deleted could easily have been
139 G (2002) 153–154.
140 M (1986) 62–63.
141 See K (2012) 236 et seq.
142 R (1962) 516–517.
143 K (1998) 132; F
(1996) 110–111.
144 H (1994) 1450. – See T
(1965/66) 10; K (1981) 30;
A (2005) 64; M (1986)
61.
145 See for example Geheimes Staats-
archiv Preußischer Kulturbesitz (Ber-
lin), Hauptabteilung I, Repositur 84,
Abteilung XVI, number 3, vol. 5, fo-
lium 87r–88v. – See D (1960)
149–150; K (1998) 176–177.
146 S (1994) 457;
S (1993) 51 et seq.;
F (1996) 134.
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26 Power and Law in Enlightened Absolutism – Carl Gottlieb Svarez’ Theoretical and Practical Approach
interpreted in a much broader sense than within
what was originally intended to be their scope of
application. The Bavarian civil servant Johann
Georg Schlosser – one of Goethe’s brothers-in-
law – for instance brought up the painful subject
in his paper published in 1789, in which he raised
the question of whether the Machtspruch provision
of the AGB meant that the party affected had the
right to resist in cases in which the king acted in
violation of that provision.
147
Although it is true
that from an objective point of view, according to
what has been established above, the answer would
have been in the negative, a judge might – just as
Schlosser – not have been certain as to how to
interpret the respective provision. It was probably
due to such examples that the king grew increas-
ingly concerned about the AGB creating incentives
for further reforms on a larger scale. Since such a
risk was highest with regard to provisions that were
given a prominent position within the AGB –
namely in the introduction – certain provisions
which had a similar content but were not as
exposed within the text were kept. For that reason,
the Machtspruch provision of § 6 of the introduc-
tion to the AGB was deleted while § 10 of the 13th
title of the second part of the AGB/ALR was kept.
The latter provision stipulates that if a criminal
offender is pardoned by the king, that does not
mean that the victim of the crime loses their right
to compensation under civil law. Apparently, the
risk of the members of the judiciary disobeying the
king was not deemed as high with regard to this
provision as with regard to § 6 of the introduction
to the AGB.
It is hence apparent that § 6, § 12 and § 79 were
deleted because they contained a certain risk of
misinterpretation rather than because of their ac-
tual legislative content. This does not, however,
justify drawing the conclusion that the final revi-
sion did not entail any substantial changes to the
legal concept underlying the Prussian code of laws.
The fact that the deletion of the provisions men-
tioned above meant that certain substantial po-
litical duties of the monarch were no longer laid
down publicly plays a decisive role here. As a result
of the final review, the need for the king to justify
possible violations of those duties to the public was
reduced significantly.
On the other hand, many of the reformists’
ideas did indeed persist even aer the final review.
For instance, the revised version of the Prussian
code of laws still stipulated the limited room for
interpretation of the laws by the judges. Another
concept that was le untouched was the role
attributed to civil servants and the subjects. Even
under the application of the ALR, the Gesetzkom-
mission maintained its role as the institution whose
task it was to advise the monarch on issues regard-
ing the legislative process. As far as the Prussian
subjects are concerned, Svarez had never aimed at
their full participation in the legislative process. He
had always insisted in distinguishing between civil
and political liberties – he was only interested in
achieving the former.
148
The AGB did, however,
contain some substantial provisions regarding the
freedom of thought that did not fall prey to the
final review.
149
One example is the right for each
subject to publicly voice possible doubts about or
objections to any legal rule (§ 156 of the 20th title
of the second part of the ALR). Criticism by the
subjects was hence allowed, a fact that certainly
had a normative effect, since it could in certain
cases mean that the regent was under increased
pressure to justify his actions. The right to voice
public criticism was certainly not individualised,
but it was meant to serve an enlightened exercise of
power by the monarch. Furthermore, the fact that
Svarez provided for the subjects’ right to voice their
objections reflects his fundamental concern with
regard to the relation between free people and the
state.
150
The codification of this principle may well
be one of the big achievements of this extraordi-
nary legal reformist.
IV. Conclusion
Did Svarez’ ideas prevail then? The answer
seems at first sight to be a definite yes. The consid-
erations about the final review not having lead to
any fundamental changes of his basic concept in
particular seem to confirm the assumption that the
147 S (1789) 175.
148 M (1991) 116.
149 K (1998) 133.
150 See Svarez, Crown Prince Lectures,
in: C /K (1960) 219.
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Milan Kuhli 27
Prussian reformist achieved his ends. However,
there are some objections to be made to this view:
If one were to believe that the concerns Frederick
William II. and his confidants had about §§ 6, 12
and 79 of the introduction to the AGB – which
were deleted in the course of the final review –
becoming central to further large-scale reform
efforts were indeed justified, one cannot rule out
the possibility that Prussian history would have
taken a different turn if it had not been for the final
review.
However, considerations about the hypothetical
effects of events in counterfactual history are usu-
ally vague and partly even futile. With regard to
Svarez, the speculations described above might
even be completely erroneous, since they do in
no way reflect the reformist’s aims. Svarez was
known to be a most dutiful civil servant, loyal
not only to his minister of justice, with whom he
shared remarkably close bonds all throughout his
professional career, but also and especially to the
Prussian monarchs. It is hence improbable that he
would have designed the Prussian code of laws
with the idea in mind of promoting attempts to
constitutionalise the Prussian monarchy.
At the same time, however, Svarez’ undeniable
dutifulness should not be misinterpreted as mean-
ing that the reformist was altogether opposed to
any change in the Prussian political system. His
loyalty towards the state and its regent must not be
mistaken for an uncritical attitude. As he men-
tioned in one of the Crown Prince Lectures, Svarez
did not shy away from voicing audacious truths
(›dreiste Wahrheiten‹
151
) as long as he was con-
vinced that they were valid. However, one of these
audacious truths was certainly the publicly stipu-
lated advice towards the king to renounce to
issuing Machtsprüche. Without the final review,
the Prussian code of laws would have become a
publicly available document of the self-discipline
of monarchical power and as such it would have
made possible violations by the monarch of the
duties he was subject to according to natural law
visible to all citizens of the Prussian states. As a
consequence of the final review, however, Svarez
was denied the opportunity of influencing the
monarch’s exertion of power. Nevertheless, a num-
ber of his efforts to point out the path of natural
law to the king were indeed successful. All in all, it
may be true that Svarez’ work did not exactly make
him the one to bring about a new era in Prussian
legal history – his great achievement, however, lies
in his systematic attempt of bringing about en-
lightened limitations to what was at that time
illimitable.
n
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