L'aigle bicéphale porte les États impériaux sur ses ailes.
|Cours||History of legal and political thought: the concept of empire from its origins to the present day|
- The history of the concept of empire
- The foundations of the Roman model
- Rome's Western heritage: the Holy Roman Empire
- The papal conception of the empire and the emperor as dominus mundi
- The legal and political problems of the conquest I
- The legal-political problems of the conquest II
- From empire to federation: the American case
- Can a democracy be an empire?
How, basically, did we get from the Roman Empire to the German Empire? What has happened since 476, the fall of the Roman Empire, to 962, which is the creation of the Holy Roman Empire? How did the Roman idea of Empire become the Germanic idea of Empire?
Medieval bases: the role of the great Germanic invasions, the importance of colonisation and mercenarism[modifier | modifier le wikicode]
The Germanic peoples played a huge role. The Roman Empire did not collapse in one fell swoop. What we have to see is that there has been a gradual Germanisation of the Roman Empire since the 3rd century, which has taken place in three very simple and concrete ways:
- the mercenaries: the Germans penetrated peacefully into the Roman Empire because they were enlisted as mercenaries from the 2nd century onwards. Rome had less and less recourse to Roman citizens in order to fight in the army, little by little it was necessary to hold this immense empire. Somehow this caused the loss. Rome offered the Germans to be engaged in the army as mercenaries. From the 4th century onwards, the term "barbarian" became synonymous with the term "soldier", and the Germans became the majority in the Roman army.
- the colonate: it is a little bit the same system as the mercenaries. It is the idea that the Romans will give their deserving German soldiers hereditary lands, large territorial spaces to thank them. From the 2nd century onwards, following the example of the Roman colonists in the empire, the Germans received a lot of land. They were given lands that surrounded the border areas of the Empire. It is a bit like the principle of buying peace through land. Thus the Romans ensured their protection for military reasons to ensure the defence of their borders at a lower cost.
- invasion: the mercenaries and colonists saw Germanic peoples from outside the empire flooding into their lands. There were three major invasions between the 3rd and 6th centuries. A first invasion is the Visigoths, the Ostrogoths and the Burgundians; a second invasion by the Frankish Germanic peoples, the third invasion is the invasion of the Germans who go to the north of Europe, it is the Saxons, also called Angles or Jutes, who go to Great Britain. The Roman Empire was taken in a stranglehold. It was the invasions of the Huns that displaced the Germans pushing the Germans towards the Roman Empire. The Huns flow back from China to the West.
The main stages of the constitutional history of the Holy Empire [restauratio imperii][modifier | modifier le wikicode]
The phenomenon of the great invasions led to a number of Germanic kingdoms and the Roman Empire was gradually divided into Germanic peoples who took up the idea of empire from the Romans because they had a conception of patrimonial, patriarchal and personal powers that allowed the Germanic chiefs to take up the idea of the Roman imperium. In concrete terms, from the 6th century onwards, the Roman Empire no longer existed. From the 7th and 8th centuries, among the Germanic peoples who conquered the Roman Empire, one of the kingdoms began to leave its mark on the others. The most powerful people of the Germanic peoples were the Franks, who gradually established their authority over all the other Germanic peoples who created the First Empire by proclaiming themselves "emperor" for the king of the Franks, the Carolingian Empire. One man played a central role in the Restauratio Imperii, Charlemagne, who founded the Carolingian Empire in the year 800, which was intended to be the successor to the Roman Empire, taking over its main features, but it is clear that the Roman Empire became an empire dominated by the kingdom of the Germans.
The idea of empire will go in two directions. The first is the "secular" political conception through the Germanisation of the Roman Empire, the other major branch is the role of the Church. The Germanic branch was born from the year 800 with the coronation of Charlemagne. The religious branch is not negligible in what was to become a double imperial confrontation between a secular and a religious conception. The conception of empire was also taken up by the Church because the Church was gradually not going to Germanise the Roman Empire, but to Christianise it. The Christianisation of the Roman Empire will be rendered by a number of facts. First of all, the conversion of Emperor Constantine to Christianity in 311. The children of the emperor will be Christian, one of his successors, Emperor Theodosius in 381 will make the Christian religion the official religion of the Roman Empire. Thus, there is a personal conversion of the emperor and a conversion of the whole empire. The decree making the Christian religion the one and only official religion of the Roman Empire will have immense consequences on the Roman Empire itself.
Very soon, there was a Christian Roman Empire and the Church from 476 onwards, when hordes of Germans sacked Rome and imploded the Roman central state, one institution retained its power, which was the Church. The conversion of the Roman Empire into a Christian Empire made the institution of the Church an important power that did not disappear at the time of the invasion of the Germans. The second branch born from the conversation of the Roman Empire into a Christian Empire was born from the maintenance of the church as a central power at the moment when the Germans destroyed the political power of Rome.
Very quickly, when the Franks became the kingdom of the Germans, which was to prevail from the 8th century onwards, the Frankish dynasty of the Carolingians gradually imposed its political power from the year 800 when Charlemagne proclaimed the Restauratio Imperii and the birth of the Carolingian Empire. Charlemagne claimed to be the heir of the Roman emperors, but he also claimed to be a Christian ruler. He not only defended the temporal and political interests of the Germanic peoples, but also wanted to present himself as the spiritual leader of Christianity. Gradually, he is emerging as the temporal leader with a vocation to protect the Christian religion. This restoration of the Roman Empire culminated in the coronation of Charlemagne as Emperor in 800. It was Pope Leo III who demanded that Charlemagne be crowned. The great issue at stake was whether the Emperor's power was held by the Church or by the kingdoms he ruled. In other words, Charlemagne's coronation by Leo III, the restoration of a Christian Roman Empire further divided the two branches of the Roman Empire.
Charlemagne soon marked his independence from the Church by thanking Pope Leo III for not holding the power of the pope. Spiritual power is not superior to temporal power, it does not hold the legitimacy of Leo III's adouement. In 476, Rome implodes, the Visigoths, the Ostrogoths and the Burgundians sack Rome, putting an end to the Roman Empire. At the fall of the Roman Empire in 476, it was de facto and de jure divided between the Western Roman Empire and the Eastern Roman Empire. The King of Byzantium, who was under the domination of the Roman Emperor, declared himself the logical successor of the Roman Emperors. Charlemagne manifested his independence from the Church and from the Byzantine Empire. In a famous text, he accepted that the Emperor of Byzantium bore the title of Emperor of the Romans, in return for which the Emperor of Byzantium gave Charlemagne the title of Emperor of the Franks, who became not the Emperor of the Romans.
The geopolitical situation is as follows. The Empire of Byzantium has become the Eastern Roman Empire and in the centre of Europe, the Carolingian Empire wants to take over and restore the Roman idea of empire, but cannot do so because it is in competition with the Emperor of Byzantium and with the Church. It was up to Charlemagne to sit down and try to take up the Roman idea of empire with very moderate success because of the competition. The Roman idea of empire moves to Byzantium, and is partly taken up by Charlemagne, but it will be up to Charlemagne's successors to really create and implement by founding the imperial ideology with the Holy Roman Empire. In a way, the Carolingian Empire is a transitional empire that takes up the idea of empire and passes it on to the creators of the Holy Roman Empire, which was born in 962 with the coronation of Otto I, who holds the title of King and Emperor of the Franks. The birth of the Holy Roman Empire marked a turning point in the idea of an empire with a true imperial ideology.
The three fundamental characteristics of the Holy Empire: Romanity [imperium romanum], Christianity [imperium christianum et sacrum], universality [imperium mundi][modifier | modifier le wikicode]
When Otto I became Emperor of the Franks, he understood that if he wanted to restore the Roman Empire and take over the Roman imperial ideology, he had to mark his territory politically vis-à-vis the Church and vis-à-vis Byzantium. Very quickly, he asserted himself as the emperor of the Romans, he wanted to be the emperor of the Romans, being called "imperator romanorum francorum". He gave the Emperor of the Eastern Roman Empire the title of "Emperor of the Greeks". At the same time, Otto I was proclaimed the sole emperor of the Romans and the Germanic heir to the Roman Empire. From 962 onwards, the idea of the Roman Empire was truly recovered by the Frankish dynasty, but above all by the dynasty of Otto I, and the Holy Roman Germanic Empire became the successor to the Western Roman Empire.
The Holy Roman Empire, which removed the church from its power and Byzantium, was based on a number of characteristics, but above all on an important and precise geographical and political map. The Holy Roman Germanic Empire occupied Francia, Bohemia, but also the north of present-day Italy. The Holy Roman Empire occupied an extremely important territorial area. In fact, the Holy Roman Empire was formed in the eastern part of the Carolingian Empire. The Romans had a language that united them which was Latin, the Holy Roman Empire had German as its unifying language from the end of the 9th century and at the beginning of the 10th century through the Franks, the Swabians, Bavaria and northern Italy. The Empire included considerable territories. The Holy Roman Germanic Empire encompasses a huge population made up of Germanic peoples, but also Latin and Slavic peoples. The Holy Roman Empire enshrines the principle of diversity which the Roman Empire also enshrined because it includes not only Germanic peoples, but also people of Latin and Slavic origin.
In 962, the first heir branch of the Roman Emperor established itself as the successor to the Carolingian Empire, proposing an empire based in part on the idea of the Roman Empire. The Holy Roman Empire lasted until 1806, almost 1000 years.
There are three characteristics of the Holy Roman Empire:
- romanity: first of all, it is a Roman empire is the emperor is the emperor of the Romans or the "imperium romanorum" ;
- Christianity : it is a Christian empire;
- universality: it is an empire with a universal vocation.
Romanity[modifier | modifier le wikicode]
It appears that the Holy Roman Empire of the German Nation, from its foundation, presents itself as the successor of the Roman Empire, meaning that the Germanic Roman Empire is the continuation of the Roman Empire. Romanity also means that the Germanic emperors consider themselves to be the legitimate successors of the Roman Emperor. Finally, Romanity also means that Roman law rediscovered in the 11th century and studied in the kingdoms of Italy was to become the law of the empire. Imperial law became Roman law for the most part.
Christianity[modifier | modifier le wikicode]
From its foundation, the Holy Roman Empire was a Christian empire, which means three things:
- the Germanic Empire is where the depositary of Christianity in Europe is claiming the role of representative, defender of Christianity in Europe.
- the Germanic Empire, according to the Christians, forms the fourth and last empire predicted by the prophet Daniel.
- the Germanic empire is a Christian empire meaning that it was willed according to God who made it the successor of the Roman Empire.
Universality[modifier | modifier le wikicode]
The Holy Roman Empire, from the 3rd century onwards, presented itself as a universal empire. This universal empire was destined to rule the world. The emperor is the holder of the "dominus mundi":
- the emperor claims that his power is universal and holds the "dominus mundi";
- the kingdoms around the Holy Roman Empire must be submitted to the Germanic Emperor.
Hierarchisation of power[modifier | modifier le wikicode]
There is a hierarchy of power. A kingdom is going to support less and less this vision and this claim to universality which is the kingdom of the Franks marking its difference. These claims were to be challenged by two institutions, namely the Church by the papacy and then by the other kingdoms of Europe, notably by the kingdom of the Franks, which became the kingdom of France in the 13th century. French jurists, in order to be able to challenge the German emperor's claim to universality, used an extraordinary Latin formula: "rex in regno suo est imperator" ("the king is emperor in his kingdom"). The king of France is an emperor in his kingdom. He is the one who will most strongly challenge the Germanic emperor's claim to universality and the papacy who will openly declare that he is above the emperor.
From the 10th century onwards, the pope challenged the emperor's claim to universality. Violent clashes between the papacy and the emperor's empire were to emerge. Two tendencies will confront each other, what has been called the trend:
- curialist, the view that the emperor holds his power only from the pope;
- imperialist, making the emperor equal if not superior to the pope.
Tensions between these two heir branches will grow stronger and stronger until the end of the 12th century when the emperor and the pope sign a kind of armistice treaty called the Worms concordat in 1122 dividing, dividing the two powers of the emperor and the pope.
The Holy Roman Empire of the German Nation was in a way going to take up the classical imperial ideology, but was going to add a fundamental principle which was the principle of election. The emperor will be an elected emperor. The idea of empire will somehow be transformed by the establishment of an elected emperor, an elective empire.
These three criteria, these three characteristics of the Holy Roman Empire had been contested by some European kingdoms such as France and later England, but also by the popes and the church who did not understand that the power of the emperor prevailed and dominated the papal power. It is very clear that in Europe between the 5th and 16th centuries a political and a religious conception clashed.
The normalisation of relations between the Empire and the Papacy did not come until the 12th century with the Worms Concordat of 1122, which attempted unsuccessfully to seal peace between the two conceptions of empire. The quarrel between Emperor Henry V and Pope Calixtus II found a compromise, a kind of power-sharing, but this power-sharing was always going to be questioned and tensions continued from the 12th century onwards around a major issue. Tensions between popes and emperors will continue around the question of which of the two powers is superior to the other. Two major tendencies clashed: the curialist view which asserted that it was the pope who made the emperors and defeated them, and therefore affirmed that spiritual power was superior to temporal power, in other words that temporal power was inferior to that of the popes; the imperialist tendency affirmed the opposite and held that the very election of the emperor was the determining factor. The supporters of the imperialist view will say that the election of the emperor is sufficient to give him legitimacy and to be superior to the pope. There is a real quarrel within imperial Europe over supreme authority.
What you need to know is that from the 13th century onwards, little by little, European kings and princes were to free themselves from the emperor. In other words, there was a religious challenge to the power of the emperor, but within the empire itself there was also a challenge to the power of the emperor. The elective principle which is constitutive of this empire will also be the cause of its loss and of the emperor's weakness. Because, if the emperor is elected by seven prince electors, these prince electors will try not to monetize their agreement, but to obtain competences and prerogatives in exchange for their sovereignty. The prince electors, kings like the King of Bohemia, will empower themselves, weakening their vision of the empire both on the knocks of the popes from the outside, but also from the inside because this vision is contested by princes and kings within the Holy Roman Empire itself.
The criterion of universality is challenged. Romanity is not contested, neither is Christianity, but the claim to universality is contested by the popes who do not accept that the emperor is the holder of the dominium mundi.
There is an important historical fact that will further weaken the emperor, but it will not weaken the universal dimension of imperial power, but the Christian dimension. The confessional division of the empire from 1517 onwards. With the publication of Luther's ninety-five theses, the emperor's inner power was weakened, and he no longer had to negotiate with Catholic principles, but with Catholic and Protestant princes. The confessional division of the Holy Roman Empire in the German Empire finally called into question the Christian and universal dimension of the empire as proclaimed in 1562. Of the seven prince electors, three converted to Lutheranism. The emperor was faced with an almost ideological and religious challenge that he had to deal with. Politically and institutionally, each prince demanded greater autonomy and the empire soon became a decentralised empire. Here we are at the roots of German federalism, which would come much later. The decentralised vision of power has its roots in the political conception of the empire.
How does the political conception of the empire work? The Holy Roman Empire is an elective empire with an empire diet and empire courts. The Diet has parliamentary functions with a number of prerogatives, it is competent for passing laws, creating new principalities, levying taxes, mobilising troops and signing treaties or declaring war. It is an imperial system in which the conception of empire defended by the great imperial jurists is a conception of an elected, decentralised empire giving important competences to the states that make up this empire and particularly to parliament.
The rules of the election are extremely precise, there is a historical reason and a theoretical reason. The first is that, basically, the Roman idea of empire is grafted onto the elective vision of German royalty. Even before the birth of the German Empire, the kingships of the Germanic peoples were not based on the hereditary principle, but on the elective principle. When the Holy Roman Empire recovered the idea of empire, it grafted the idea of empire on to an elective vision of power that had prevailed at the time of the Germanic kingships. The elective principle was rooted in the "genes" of the principles that made up the great Germanic royalties. The historical reason for this is that the German dynasties left few heirs, they were quickly extinguished. Until the Habsburgs, the first German imperial dynasties, the successors of Otto I very quickly disappeared, reinforcing the elective principle that gives a certain number of pledges to German princes. For these two reasons, the elective principle became established within the empire.
The elective principle was gradually asserted and it was in the Golden Bull of 1356 that the election to the crown was regulated. The Golden Bull consecrated seven elector princes, the elector circle consisted of seven electors, namely three religious who were ecclesiastical principles and four "lay" princes who were the Archbishop of Mainz, Cologne and France and four lay princes, namely the Count Palatine of the Rhine, the Duke of Saxony, the Prince of Bohemia and Brandenburg. It is a rather hybrid empire.
The Worms Concordat signed by Calixtus II and Henry V is a first attempt to resolve the difficult relationship between the emperor and the pope.
« In the name of the holy and undivided Trinity. I, Henry, by the grace of God, the august Emperor of the Romans, with the strength of the love that I nourish towards God, the Holy Roman Church and Pope Calixtus and for the salvation of my soul grant to God, to his holy apostles Peter and Paul and to the Holy Catholic Church all investitures by means of the ring and the staff; I further grant that in all the churches, which are under my empire or my reign, canonical elections and free consecrations may take place. I restore to the Holy Roman Church the possessions and rights of Blessed Peter [designates the Pope, St. Peter having been the first Pope], which from the beginning of this discord until today, that is, from the time of my father to me, have been taken from him, and which I still possess to this day; but those which are no longer in my possession, I will see that they are restored to him. »
The emperors had the claim to manage the property of the Church, and the emperor himself claimed to appoint bishops and priests until 1122. For Calixtus II, this was unlikely, an arrangement was found whereby the emperor renounced the investiture, he dubbed the priests. The emperor would renounce the investiture of the religious in Germany and the management and income of the church.
« I, Calixtus, servant of the servants of God, to my dear son Henry, by the grace of God, Roman Emperor: I grant you that the elections of the Bishops and Abbots of the kingdom of Germany, who belong to the kingdom, will be held in your presence, without simony and without any violence. If a discussion arises between the parties, you must, with the help of the Metropolitan and the Bishops of the province, give your assent and help to the most worthy party. »
Si l’investiture des évêques et dorénavant de la prérogative et de la compétence du pape, l’empereur est consulté. Calixte II acceptera la consultation de l’empereur dans ses nominations.
La bulle penerabilem va permettre aux rois français et anglais de se prétendre empereur en leur royaume, soit autonome, indépendant, de l’empereur du Saint Empire romain germanique. Dans le Miroir de Saxe, sont décrits les sept électeurs, mais le texte consacrant le principe de l’empire est la Bulle d’or de 1356.
In the Saxon Mirror of 1230, it is stated that "For the election of the Emperor, the first must be the Bishop of Mainz, the second the Bishop of Trier, the third the Bishop of Cologne. Among the ecclesiastical princes, the first and Count Palatine of the Rhine, the great seneschal of the empire, the second, the Duke of Saxony, who is the marshal, and the third, the Margrave of Brandenburg, who is the cameraman. The cupbearer of the Empire, the King of Bohemia, has no right of election.
This is a very important text in the Holy German Empire. The language is symbolic, religious, and we can clearly see the use of a certain number of symbols that make up the Roman Empire. Some important passages should be remembered.
« Also, We are obliged, by virtue of the office invested in us with imperial dignity, as Emperor, and by virtue of the Voter's rights which We have exercised, to combat future dangers due to divisions and dissensions among the Voters themselves [...] We have decreed the following in order to promote unity among the Voters, to bring about unanimity in the election, and to put an end to the disastrous division of which We have spoken, and to the many dangers arising therefrom. »
The terms "unity" and "unanimity" are very important because for a very long time emperors were elected unanimously. There is an informal election and a formal election, it was important to elect the emperor unanimously to give him legitimacy.
In the chapter which is the election of the king of kings, the emperor is considered to be the successor of the Roman emperor.
« je veux avec l’aide de Dieu élire le chef temporel du peuple chrétien, c’est-à-dire le Roi des Romain et futur Empereur, qui soit propre à cette fonction, dans la mesure où mon discernement et mon jugement me dirigent et conformément à la fidélité promise… […] une fois le semant prêté selon la forme et la manière susdite par les électeurs ou leurs délégués, qu’ils procèdent à l’élection et qu’ils ne quittent plus la ville de Francfort jusqu’à ce que soit élu, par la majorité d’entre eux, le chef temporel du monde chrétien, le Roi des Romains et futur empereur. »
Chapter IV describes the order of precedence of the Prince Electors, they do not have the same weight for two reasons. Firstly, there is a king within the electorate itself who is the King of Bohemia, and secondly, they do not have the same weight because it is the Archbishop of Mainz who initiates the process of electing the emperor. Two prince electors, one secular and one religious have more weight than the others. It is an elective empire with a very precise hierarchy of elector princes. The number of prince electors will vary from 1648 onwards: from 1648 there will be eight and from 1692 onwards there will be nine.
This is an elective conception of the empire, but it should also be remembered that the Holy Roman Empire was to experience a gradual shift of power from the emperor to the prince-electors, and the princes of the empire. As the Holy Roman Empire progressed through history, the real holders of sovereignty both domestically and internationally were the empire princes, because from the Treaty of Westphalia in 1648, the empire princes obtained the competence to negotiate treaties with entities outside the empire such as France, England and Poland. It is clear that the elective principle that prevailed within the Holy Roman Empire gradually weakened the political conception of the empire because the Germanic Empire became an extremely decentralised empire with states that gradually acquired sovereign powers. By the end of the 17th century, the German Empire, heir to the Roman Empire, was a weak, decentralised empire, an "institutional monster" and it would not be very difficult for Napoleon to organise its downfall in 1806. This was the end of this first political vision of the empire.
The political conception of the empire did not remain unchallenged, particularly by the French and the English, but also by the Church, which very quickly wanted to propose its conception of the empire, its vision of the power of the emperor, its vision of authority, this was the papal conception of the empire.
Annexes[modifier | modifier le wikicode]
References[modifier | modifier le wikicode]
- Alexis Keller - Wikipedia
- Alexis Keller - Faculté de droit - UNIGE
- Alexis Keller | International Center for Transitional Justice
- Gros Frédéric, Le principe sécurité, Paris, Gallimard, 2012, p.86