Toward a Civil Constitutionalism
The Covenant Tradition in Politics, Volume 4, Chapter 1
Daniel J. Elazar
The cleavage between the modern and premodern epochs is generally acknowledged. We may argue over the extent of the cleavage and the degree of continuity across the premodern-modern divide, but the fact that the cleavage was and is a reality for most people who have undergone modernization has been well-documented. Nevertheless, covenant is one of those concepts and its tradition one of the cultures that did manage to cross the divide and survive; transformed, indeed, but in the process having an enormous influence on the shaping of the modern epoch, especially in its political dimension, and continuing to compel certain populations or at the very least to serve as the rock of refuge to which they return for reinvigoration in times of need. It is no less important to recall that the political transformations of modernity were initiated by and achieved their greatest success in those countries where the covenantal tradition had been strongest, particularly the Netherlands, Scotland and England, Switzerland, and the United States.
Circumstantial evidence alone would suggest that there should have been a connection between the covenant tradition and modern constitutionalism. That evidence is strengthened by the record, which shows real connections, and also by the results. Indeed, the most successful results, even from the perspective of the first modernists, came when the tradition of the covenantal commonwealth and that of modern civil society found common ground and served as mutual modifiers, as in the founding of the United States. Moreover, the record of constitutionalism in those countries and polities without a covenantal tradition is so sharply different as to suggest the same. This book seeks to tell the story of the crossing of that gap and its consequences, and to analyze the results and present status of the covenant tradition in Western, now increasingly world, politics.
To do so we must look at covenant in all its many dimensions, as generator of theory, as fundament of culture, as ideological manifestation, as shaper of institutions, and as influence on behavior within the matrix constructed by all, many, or some of the foregoing. Covenant theory and practice had its greatest flowering in the Bible and its second greatest during the Protestant Reformation as the basis for Reformed Protestantism. It may be at the beginning of its third great revival today, early in the postmodern epoch.
Although we can uncover the beginnings of covenant theory, ideology and institutions in the Bible and Biblical Israel, the origins of covenantal cultural predispositions, especially political culture, and behavior remain unclear. Even the most careful investigation fails to uncover those origins with any certitude. Even the lines of continuity of covenantal culture or political culture tend to be obscured for certain times and in certain places. What we have pieced together from the past is a kind of incomplete puzzle where many of the pieces are still missing or, if not ultimately missing, have yet to be uncovered. In the modern epoch, the problem is less one of missing pieces than of inadequate information regarding the many pieces that we have, often because they have been reported to us without addressing the covenantal dimension, either taking it for granted or considering it unimportant. In such cases, only a return to the most original sources can help us, and it has not been possible to do so in all cases.
Covenant, Compact, Contract
A covenant is a morally-informed agreement or pact based upon voluntary consent and mutual oaths or promises, witnessed by the relevant higher authority, between peoples or parties having independent though not necessarily equal status, that provides for joint action or obligation to achieve defined ends (limited or comprehensive) under conditions of mutual respect which protect the individual integrities of all the parties to it. Every covenant involves consenting, promising and agreeing. Most are meant to be of unlimited duration, if not perpetual. Covenants can bind any number of partners for a variety of purposes, but in their essence they are political in that their bonds are used principally to establish bodies political and social.
Covenant is tied in an ambiguous relationship to two related terms, compact and contract. On the one hand, both compacts and contracts are derived from covenant, and sometimes the terms are even used interchangeably. On the other hand, there are very real differences between the three which need clarification.
Both covenants and their derivative, compacts, differ from contracts in that the first two are constitutional or public and the last private in character. As such, covenantal or compactual obligations are broadly reciprocal. Those bound by one or the other are obligated to respond to one another beyond the letter of the law rather than to limit their obligations to the narrowest contractual requirements. Hence, covenants and compacts are inherently designed to be flexible in certain respects as well as firm in others. As expressions of private law, contracts tend to be interpreted as narrowly as possible so as to limit the obligation of the contracting parties to what is explicitly mandated by the contract itself.
A covenant differs from a compact in that its morally binding dimension takes precedence over its legal dimension. In its heart of hearts, a covenant is an agreement in which a transcendent moral force, traditionally God, is a party, usually a direct party, to or guarantor of a particular relationship; whereas, when the term compact is used, a moral force is only indirectly involved. A compact, based as it is on mutual pledges rather than the guarantees of a higher authority, rests more heavily on a legal though still ethical grounding for its politics. In other words, compact is a secular phenomenon. This is historically verifiable by examining the shift in terminology that took place in the seventeenth and eighteenth centuries. While those who saw the hand of God in political affairs in the United States continued to use the term covenant, those who sought a secular grounding for politics turned to the term compact. While the distinction is not always used with strict clarity, it does appear consistently. The issue was further complicated by Rousseau and his followers who talked about the social contract, a highly secularized concept which, even when applied for public purposes, never develops the same level of moral obligation as either covenant or compact.
Covenant is also related to constitutionalism. Normally, a covenant precedes a constitution and establishes the people or civil society which then proceeds to adopt a constitution of government for itself. Thus, a constitution involves the implementation of a prior covenant -- an effectuation or translation of a prior covenant into an actual frame or structure of government. The constitution may include a restatement or reaffirmation of the original covenant, as does the Massachusetts Constitution of 1780, but that is optional.
Although perhaps more difficult than tracing covenantal ideas expressed in political thought, covenant as ideology is more easily identifiable since ideology is a very public form of theory. Covenant-as-culture persists even when it is not necessarily recognized as such, while covenantal ideology had its ups and downs in the modern epoch. It was strong in the mid-seventeenth century in the British Isles, the Low Countries and in the American colonies; again at the time of the American Revolution; and periodically thereafter in covenant-based civil societies, but never again during the modern epoch did it achieve the same status.
One of the tests of the presence of the covenantal dimension is to be found in the institutions that developed within the covenantal matrix, particularly in matters of their institutional governance and culture. These, indeed, can be identified throughout the epoch. Even if the larger environment is less covenantal, institutions remain carriers, at least until some massive change comes to transform them. Thus the behavior of people functioning within those institutions, particularly their political behavior, is a clear manifestation of covenant where it exists. Less easy to identify than institutions, nevertheless political behavior can be studied sufficiently well in most cases.
Covenant entered the modern epoch as a manifestation of Reformed Protestantism and in every respect it was tied to the rise and fall of Puritanism and the residues Puritanism left in certain parts of the world. Reformed Protestant had two principal sources: one was in Ulrich Zwingli, Heinrich Bullinger and their colleagues and disciples in Zurich and the Rhineland, principally in German-speaking territories of Switzerland and western Germany. The other was the product of John Calvin and his associates and students in Geneva. Calvin came on the scene after Zwingli had been killed and Calvin's doctrines rapidly became the most influential in the Reformed Protestant world.
As these influences affected the Huguenots in France, the Netherlanders, the Scots, and the English Puritans as well as the Puritans in British North America, in matters theological Calvinism was the stronger influence, but in matters political the influence of Zwingli and Bullinger was the greater. While every nation influenced by Reformed Protestantism developed its own synthesis of the two, the most influential synthesis in the world was that formed by the English Puritans. In no small measure, this was because of the power of first England and then its successor, Britain, in the world as the greatest power from the beginning of the eighteenth century until nearly the end of the modern epoch, with influence that stretched far beyond its tight little island. That influence was further increased by the fact that the Puritans fought, and in the short term won, a civil war in England itself which not only brought them to power in their own country, but enabled them to conquer Scotland and Ireland, and settle a good part of British North America as well.
Religious-based covenantal thinking undoubtedly reached its most sophisticated level of development under Reformed Protestantism and most particularly Puritanism, finding major expression on the European continent, in the British Isles, and in New England where it had lasting impact on subsequent generations, even after the Puritan commonwealths had passed from history, to be replaced by modern, secularized civil societies. Only at major historical intervals has a movement had as much impact as Reformed Protestantism has had on the history of the world.
Nevertheless, the kind of integral society that was required to maintain Reformed Protestantism came under great assault in the seventeenth century. It ultimately was brought down in favor of a far more heterogeneous world view, in part because the demands of Puritanism, and Reformed Protestantism in general, on individuals were too high. For better or for worse, most people did not want to live Puritan lives, seeing Puritanism as far too serious, demanding, and unsatisfying. Moreover, those who saw Puritanism as an appropriate way of life often could not personally sustain its demands and hence were perceived by others to be hypocrites.
Thus we had a paradox. On one hand, Reformed Protestantism developed very important and compelling theories, ideologies, and cultures supporting liberty and equality, two of the principal political aspirations of the modern epoch, but the Reformed way to achieve them required institutions insufficiently broad or free and behavior of an impossibly high standard to be realized by the vast majority of people. It remained for the new science of politics and its developers and exponents, who began with a very secular, if equally pessimistic, approach to human nature (the development of which Reformed Protestantism actually facilitated) to provide not only a bridge but a more satisfying framework for political theory and practice, both of which drew on covenant ideas in new ways.
The New Political Philosophy
The first steps toward the new science of politics were taken through the new political philosophy, the philosophic revolution brought by Hobbes, Spinoza, and Locke. All three were products of covenanted commonwealths and all three developed systems of political thought that moved people from covenanted commonwealths to their modern equivalents, constitutional civil societies. The new political philosophy began by breaking with traditional conceptions of human nature which held that the good was as much a part of human nature as other elements and that humans would naturally strive for the good if circumstances permitted that side of human nature to flourish. From a philosophic perspective, premodern theories saw natural law as overarching the entire human enterprise, built into the very foundations of the world or humanity and including all of the ideal aspirations of humankind.
This overarching character also was manifested in Christian theology, which indeed was grounded in a synthesis between natural law and Divine revelation, first developed by the Jewish thinker Philo of Alexandria for Jews living at the time of Jesus. Subsequently, Jews and Muslims had relied less on the philosophically grounded natural law and much more on Divine law as the source of the good, but the end result was very much the same. It was easy enough for the Protestant reformers to go back to what, for them, was the Old Testament and still remain within an overarching system which believed that the good could be brought out in humans because it was within them by virtue of their very nature and\or by Divine grace.
It was this edifice that was demolished by the new political philosophy, which held that the psychology of individual humans, grounded in human passions, provided the foundations for human nature, not some overarching system that included virtue; that humans had certain elemental rights by virtue of their being humans that could only be protected by the establishment of civil society, through which order could be maintained to protect the weak against the strong and strong individuals against the combination of many weak ones against them. Grounded in methodological individualism, this new political philosophy viewed individual human beings not only as the building blocks of the social order but as radically independent from one another except insofar as they chose to or felt the necessity to combine, which the political philosophers themselves believed they would inevitably do for sheer survival if for no other reason.
To effect their combination, the new political philosophers drew upon covenant ideas put forward by Reformed Protestantism, but in a secularized way. Hobbes, indeed, secularized the very term "covenant," apparently seeing within it the moral dimension and the importance of that dimension to make covenants work in an otherwise highly individualistic world. Thus Hobbes, who has come down to us with a reputation as the most "pessimistic" of the new philosophers of the seventeenth century, actually rested his philosophy, especially in its political dimension, on relatively high moral expectations. Spinoza and Locke, on the other hand, moved from the term "covenant" to "political compact" to highlight a morality based upon human mutuality rather than even a putative Divine connection. Of course, Hobbes had the same idea but thought that he could keep the term which so clearly expressed the moral dimension of pacting that he had in mind.
Despite this, however, covenant continued to mean a pact between humans and a transcendent power (until it later was transformed into the idea of a contract that was binding only morally and not legally enforceable -- its meaning today in the business world). Spinoza, indeed, tries hard to avoid even discussing the matter, except historically, preferring to concentrate on other issues such as the rejection of revelation in favor of rational knowledge of natural right. One might argue that this could be understood as stemming from his particular background as a Jew from a Maranno family, and the questions that it led him to raise. Those questions led him to be more interested in directly confronting the problem of Divine revelation and the necessity for its replacement by a system of rational philosophy than either Hobbes or Locke.
Locke was sufficiently a product of his late Puritan environment to seek to incorporate some of its major premises and methodologies into his new, more secularized, version of political philosophy. He felt the need to undermine Divine revelation only insofar as it seemed to protect the Divine right of patriarchal monarchy, which he did very thoroughly in his First Treatise on Government but which also was not very difficult, given the thrust of Scripture away from patriarchy in any case.1 For Locke, however, as in the Bible, humans organized themselves around morally grounded and reinforced pacts. God became, at most, a guarantor for those human pacts rather than a partner in them. With those developments in mind, Locke could then enlist much of Puritan political thought in his cause, albeit in secularized form.
What was common to all three of these philosophers was a very realistic psychology, one that made no moral demands on humanity other than those perceived to be in their self-interest. The full consequences of this shift would not be known for another three hundred years -- until the tenth generation after its occurrence -- when it became an agent of extreme secularism as well as republicanism. While the latter is what particularly concerns us here, we cannot understand it unless we understand the former as well, for while all three and the lesser philosophic lights of the seventeenth century who travelled the same path preferred to refer to political society as a commonwealth, by the end of the century they had introduced the term "civil society," which added a new dimension to the commonwealth.
The idea of civil society explicitly or implicitly secularized the commonwealth in two ways, by grounding society in a civil rather than a Divine order, and by resting it on the private lives of individuals that were modified only by the agreement of those individuals to surrender some of their privately held power (which after all was authoritative in this view of the world) to one or another collectivity, either a public, non-governmental association or a far more binding governmental association that became the framing institution of civil society. Since both of these were private decisions to establish and maintain collectivities, the private was primary, even though for those philosophers the public domain was absolutely necessary for the protection of life, the advancement of liberty, the ownership of property, and the pursuit of happiness. For them, the commonwealth was no longer the Puritan commonwealth resting on Divine guidance defined and established by covenants, the original of which rested on human partnership with God, but was a civil society based upon political and social compacts, entered into by human beings with or without Divine protection on the basis of mutual pledges to be sustained by the power of the new collectivity derived from the moral commitments of the mutual pledging. The essence of covenanting was preserved but with a new grounding and more limited purposes.
The New Science of Politics
This, in turn, led to the new science of politics. The process of translating the new political philosophy into effective institutions of government became the province of the exponents of the new science of politics. That took more time. By the end of the seventeenth century, the new political philosophy had already become the cutting edge if not the regnant philosophy for Western Europe and the British Isles in one form or another. It took longer for the new science of politics to make its mark, in practice, after the change in theory. Indeed, not until 1789, toward the end of the eighteenth century, could it be said to have done so.
The task of the new science of politics was multifaceted. Not only would it have to translate abstract theories of the origins and foundations of the polity into operational ones but it had to secure sufficient penetration and spread of those theories among the publics which would have to make practical governing decisions. Those philosophic theories, once translated, became the cornerstones of eighteenth century theories of republicanism, revolution, liberty and equality, federalism and rights, inter alia.
To some extent those theories necessarily had to become ideologies, accessible in simpler form to wider circles of people. As such, they could begin to penetrate the political cultures of those same publics and at the same time influence the design of new institutions to make them operational. Those institutions, in time, had a profound effect on the political behavior of those who lived within them.
The key to the successful movement from the new political philosophy to the new science of politics was the idea and practice of constitutionalism, itself derived in its essence from the covenantal political tradition rather than from premodern European constitutionalism which rested on the old monarchic or aristocratic political philosophy and politics. Constitutionalism involved the translation and concretization of the ideas of the new political philosophy into the civil institutions of the new polity. Modern constitutionalism was essentially an eighteenth century invention, although its beginnings had appeared in the seventeenth. It received its fullest embodiment in the Constitution of the United States of America.
Several things stood out as marking the new constitutionalism. One, it was limited, seeking only to frame governments for civil societies, unlike ancient constitutionalism which sought to construct the basic rules for comprehensive ways of life in religiously grounded commonwealths meant to be homogeneous with regard to beliefs and norms, and practices expressing both. Two, it was designed to protect the principles of the new political philosophy, especially those addressed to the issue of individual rights. Three, it was to draw its source of authority principally from the people it served. This was made manifest by directly involving the people in the writing and adoption of constitutions in a concrete expression of their sovereign powers. Four, it was to establish appropriate institutions for achieving the constitutional goals of the new political philosophy, including representative republican government, separation of powers and checks and balances, rights protections, and in the most prominent cases, federalism.
The crowning constitutional achievement of the new science of politics was to be found in the constitutional order established in the United States of America, first in the individual states, then for the United States as a whole through the Articles of Confederation and finally through the federal Constitution of 1787, which was ratified and went into effect in 1789. That constitution embodied all of the elements called for by the new science of politics and set both a model and a standard for the rest of the world, remaining just that even today, more than two centuries later. Moreover, the commentaries on that constitution, beginning with The Federalist, explicate it explicitly in terms of the new science of politics and have made it possible for subsequent generations to learn how the two are connected.
One of the most important achievements of the American founding era was the resynthesis of the two great strands of political theory and practice of the previous 250 years. Not only were the ideas of the new political philosophy and its science of politics so important, but as many observers, foremost among them Alexis de Tocqueville, have recognized, they were integrated with the ideas of the Puritan commonwealth. Indeed, one of the principal ways in which we can see how closely those two sets of ideas could be harmonized operationally without doing terrible injustice to them intellectually was through the way that they were amalgamated in the American founding.
Many, if not most, of the British colonies in North America had been founded on a covenantal basis, most while the idea of the Puritan commonwealth was still regnant in England and Scotland. This was especially true of the New England colonies, which formed a concentration of political and intellectual power not exceeded anywhere else in the world for these purposes. In them, as Tocqueville put it, the spirit of religion and the spirit of liberty could walk hand in hand not only with each other but with the idea of civil society because of a particular convergence of circumstances.
Indeed, even those aspects of eighteenth century constitutionalism which would have been very difficult for partisans of the Puritan commonwealth of previous centuries to accept, e.g., formal separation of church and state and the granting or allowance of equal participation by "Jews, Turks and infidels," that is to say, those not fully within the ambit of the Christian commonwealth, had become acceptable because of federalism. Theorists of American constitutional understanding could distinguish between establishment of religion by the federal government (the First Amendment begins "Congress shall make no law...") while leaving to the people of the several states to decide whether or not religion should be established within their states. The multiplicity of sects made it impossible to maintain an established church in all but a handful of states, without seriously infringing upon the rights of other powerful religious bodies in the civil society. Moreover, by the late eighteenth century in the United States all parties had come to the conclusion that it was necessary to protect individuals against government encroachment on their rights. Even the seemingly most benign and responsible government was an ever-present danger in this regard because it could get out of hand unless appropriately restricted, first by a constitution, then by appropriate institutions established by that constitution, and finally by the political culture and behavior of the people involved.
All of these lessons had come out of the covenantal tradition, which has always called for humans' involvement in their own governance, even vis-a-vis God, and for appropriate protections for what we today refer to as human rights within the framework of the commonwealth. In other words, the design of the covenanted commonwealth required institutions of specific kinds and specific sets of relationships between the institutions and those they served. The covenantal ideas of self-government, local control within a common federal (in the sense of covenantal) constitution, and individual liberty within the context of a community all had to be adapted to a more secular world.
The Puritan idea of federal liberty went a long way toward providing all but those who placed themselves outside of civil society by virtue of their actions with the protections they required to live. Moreover, the synthesis between religion and civil society achieved in the new United States suggested that humans could have the benefits of privacy and privatization within the framework of proper government that civil society provided while still retaining most of the moral dimensions of commonwealth that right religion provided. While this civil commonwealth would not be as morally demanding as the Puritan commonwealth, it would be morally demanding enough and at the same time would provide for greater individual choice and self-expression. Not only that, but all this could be guaranteed by appropriate constitutions of government.
Through the eighteenth century all philosophers as well as practical politicians believed that government was invariably necessary, that authoritative framing institutions were needed which could use coercive powers against at least those who broke the political compact/covenant. It was only in the nineteenth century that the idea of the automatic society arose, societies that no longer had to be civil but could rely upon such automatic mechanisms as the market, the goodness of man, the march of history, or whatever. By that time, modern constitutionalism was sufficiently established to cope with that theoretical delusion in practice, albeit at some cost. Most important from our perspective, proper constitutions involved humans coming together and establishing pacts that were not only enforceable in practice but that were sustained by the moral commitment of the compacting or covenanting parties. In this way the covenant tradition was transformed into the semi-secular one.
This felicitous synthesis remained the dominant characteristic of American life until well into the twentieth century. After World War I it began to be undermined, however, a process which continued until it collapsed as the dominant synthesis during the climax of the first post-World War II generation, the first generation of the postmodern epoch, in the 1960s. The postmodern epoch, then, has had to confront an unprecedented situation of its own which requires discussion on its own terms.
From Federal Theology to Federal Philosophy
The root political idea of the modern epoch was the idea of civil society, initially the modern manifestation of the Reformed Protestant commonwealth of late medieval times. Whereas commonwealth was motivated by a theopolitical covenant and the vision that grew out of it, sought solidarity based upon the normative demands of that covenant, and saw the polity as an educator of the citizenry, civil society developed out of the political compact, a secularized version of covenant that led to the development of the modern secular, pluralistic state. Increasingly, the modern polity became a state designed to provide services to its inhabitants rather than to motivate them by a compelling vision that obligated them in some way. In place of solidarity came an emphasis on individualism and individual self-expression. In place of normative demands came latitudinarianism and then permissiveness. In place of a sense of the commonwealth as an organism, perhaps divided among camps with somewhat different definitions of a common vision, civil society ultimately sought to accommodate overlapping cultures, managed by different "machines." The polity did not seek to educate but to be neutral regarding the value (and values) of those various cultures.
The full flowering of this relativistic social order was not achieved by civil society until the end of the modern epoch, just as the classic covenanted commonwealth was not achieved until the end of the previous one. Indeed, a civil society of this kind did not become fully operative until the second generation of the next epoch, but when it did, it could be seen as the fulfillment of the modern project, even if many earlier moderns would hardly have recognized it.
The contrast between the civil society and commonwealth models is portrayed in Table 1. In practice, the two models survived as models in the public mind, parallel to one another through most of the modern epoch, although in theory the civil society model had become the dominant one by the end of the seventeenth century or, at the very latest, the middle of the eighteenth. It was the ability of both models to share sufficient similarities in practice at the end of the eighteenth century, in the new United States and elsewhere, that enabled their respective adherents to work together to build modern constitutional and democratic republicanism.
In the twentieth century, however, what was left of the commonwealth model was undermined by social and cultural changes in Western society. In a sense this is ironic, since the idea of civil society had been replaced in theory by the idea of "society" in the nineteenth century, to be replaced in continental Europe by the idea of state and society, and in the Anglo-American world by the idea of liberal democracy, influenced heavily by the ideas of commonwealth mediated through those of civil society.
The synthesis of commonwealth and civil society produced a kind of solidarity that sustained itself throughout the nineteenth century, coupled with the new possibilities for individualism enhanced by technological change. The latter gave impetus to the further breakdown of the system of obligations, heavily religious, that lay at the base of the liberal democratic commonwealth forged out of the synthesis between the two models in the late eighteenth century. The nineteenth century abandonment of the civil dimension of civil society further opened the door to these developments. The idea of covenant which, in the seventeenth century, had acquired a secular as well as a religious dimension, and had resurfaced as the idea of political compact in the late seventeenth and eighteenth centuries, was replaced in the late eighteenth and nineteenth centuries by the idea of social contract, an idea that was far less demanding while obligatory, and far more a matter of agreements among individuals in society on a contractual basis without the moral backing of either covenant or compact.
The sixteenth century Protestant religious reformers believed that they were at an important historical juncture that required a new road map. Having broken with the past and the religious tradition they had inherited, they sensed the need to develop new ideas of history, especially about God's will and man's destiny. This was, moreover, a general sentiment shared by secular thinkers as well. As Machiavelli suggested, the church had endeavored to bring history to a halt and to obliterate the truth of what had come before.
This effort to introduce a new sensibility had two dimensions. Just as the Theological Federalists returned to the history of the Hebrew Bible (to them the Old Testament), first to understand God's plan of salvation, and then God's principles of political and social organization. Beginning with the Renaissance, secular philosophers returned to the classics of Greece and Rome, which, like the Bible, were re-translated for modern purposes. Most of the philosophers, great and small, also consulted the Bible; some, such as Erasmus, retranslated that too.2
By trying to understand the past and how the ancient Israelites, Greeks, and Romans had gone wrong, the modern philosophers and theologians sought to exercise greater control over their present and future. While the philosophers finally rejected the classical Greco-Roman systems, most of the political philosophers did not outwardly reject the Bible; in part, because they would have been persecuted for doing so.3 Instead, they deliberately reinterpreted, re-translated, misquoted, and adapted the Bible for their own purposes (and were often persecuted anyway). Spinoza, Hobbes and Locke, for example, demonstrate a thorough knowledge of the Bible and skillful use of it to support their teachings.
The result was yet a third separation in the history of the covenant idea in politics: the development of a secular politics, that is to say, a politics that did not rely upon a divine base for its justification or source of authority, to follow on the separation of Christianity from Judaism and Protestantism from Catholicism. While continuing to acknowledge God's sovereignty, the seventeenth century political philosophers made the exercise of His authority unnecessary to maintain the commonwealth. While continuing to acknowledge the importance of religion in the maintenance of morality and social norms, in their thought they transformed organized religion into an instrument of civil society rather than vice versa.
In effect this turned biblical tradition on its head, just as the political philosophers, by emphasizing natural right over natural law stood classic philosophy on its head, replacing earlier ideas of natural law as the overarching law of the universe in which the good and the real were one and the same, and embracing instead man's nature -- good, bad, or indifferent -- as having to be the foundation of both reality and philosophy. In time, the individual rather than society became the measure of all things, and individual rights the measure of political things. The polity in which individual and society were integrated as one gave way to the concept of civil society, in which public and private spheres were separate.4
The one biblical concept which could be readily carried into the new political philosophy was covenant. Given its theo-political character in ancient Israel, it could be disconnected from God with relative ease. Theologians could ponder the covenants between God and man, thereby giving solace to citizens and providing a civil religious basis for civic obligation, while philosophers could ponder the covenants among men, thereby bringing peace and security to citizens and providing a consensual basis for civic obligation.5
There is also an interesting parallel here. The theologians were certain of the eternal steadfastness of God's covenant in this scheme for the redemption of man from the punishment of death after the Fall which resulted from man's violation of God's commandment. The new political scientists were equally certain of at least the long-term stability of their civil compactual rescue of men from the omnipresent fact of death in the state of nature which results from both man's deliberate and accidental inability to follow natural law. If the Theological Federalists regarded the new Covenant of Grace as having solved man's basic spiritual problem, the exponents of the new political science regarded their new covenant of civil society as having solved man's basic political problems.
The New Political Science
By the end of the sixteenth century, the dissemination of federal ideas by Reformed Protestants had been so forceful and successful that it had generated a new language or vocabulary of covenant throughout most of western Europe. The Latin words foedus, pactum or pactio, confederatio, contractus, and consocentio had become common currency. In English, covenant and such covenant-related terms as pact, compact, contract, charter, convention, combination, congregation, constitution, treaty, league, bargain, agreement, and presbyterian were ever more common in religious and political discourse.
By the end of the first quarter of the seventeenth century, federal theologians had developed not only a thorough system of covenant theology, but also a full conception of covenant as the basis for republican political theory. All of these served the emerging modernist vision of civil society as being the product of free human wills as expressed through voluntary consent and agreement rather than conquest or a mystical natural evolution into an organic whole.
As Lord Acton, a Roman Catholic, once said, modern democracy derives more from the realities of congregationalism (the predominant form of church organization of the Puritans) than from the political thought of ancient Athens.6 To a great extent this is accurate both from an intellectual and practical standpoint. Intellectually, the principles of federal theology that gave rise to congregationalism fostered republican and democratic ideas. Practically, local congregations served as schools of self-government, while the presbyterian (the alternate system of the other Reformed Protestants) of systems of nationwide organization served as models of federal republicanism.
In the process, the concepts of covenant and compact and their consequences underwent a number of changes, though their essential core, the idea of voluntary mutual agreement and pledging for public purpose of social and political order, remained central to these various philosophic approaches.
Althusius: The First Federal Theorist
Johannes Althusius (1557-1638) was the first major philosopher to utilize covenant in order to develop a modern compactual political theory. He was not only the first systematic federal theorist but served as a bridge between the late medieval theopolitics of the Reformation and the political philosophy of the modern epoch. While a devout Reformed Protestant of the Swiss-German school, who drew heavily on the Bible for the evidence to support his systematic theory, he was at the same time a trained jurist and by his own definition a political scientist in the modern sense. His career in public administration brought him to serve very successfully as the Syndic of Emden in northern Germany. As such he was almost the ideal synthesis of both the theoretical and practical worlds, and his works reveal that.7
Althusius's ability to achieve these two syntheses, which was apparently viewed as unusual by subsequent moderns, has led to considerable misunderstanding of his work, some claiming that he is the first modern federalist and others that he is no more than a late medieval corporatist. In my opinion, the truth is that he was a true original who could see the advantages and disadvantages of both modernism and medieval corporatism and used federalism to bridge the two and provide what might be referred to, in a paraphrase of The Federalist, as federal remedies for both medieval and modern diseases.
Althusius was born near Herborn in western Germany. He received a doctorate in civil and ecclesiastical law at the University of Basel in 1586, then taught at Herborn. In both places, he was associated with Dutch, German, and Swiss theologians who developed covenant ideas. Gierke regarded his major political work, the Politica Methodice Digesta (1603), as the first systematic treatise on politics since the ancients.8 Harold Laski and Carl Friedrich viewed Althusius as an important watershed in the development of modern political theory, especially modern federalism.9
For Althusius, civil society is a "consociation of consociations" and covenant is the proper foundation for all adult relationships, beginning with marriage. Marriage is the primary human association which arises from mutual sympathy and mutual need. While marriage is a natural association in the Aristotelian sense, any particular marriage is a voluntary association constituted in a covenantal manner for mutual assistance, advantage, and responsibility. Covenant is the means by which individuals, and then groups, voluntarily consent to enter relationships and agree to terms of association as well as the basic unit of human governance and economic production. Most importantly, ties of familial affection and mutuality help to maintain a communitarian rather than individualistic orientation among citizens.
In turn, Althusius treated families rather than individuals as the fundamental unit of civil society. Families are consociated through covenants into professional corporations, guilds, and estates which serve the wider socioeconomic needs of families and exercise governing responsibilities with regard to their basic socioeconomic tasks and relationships. Families, together with these voluntary associations, constitute the private sector of civil society. Unlike Hobbes and Locke, who construed individuals as existing alone in a state of nature prior to civil society, Althusius construed individuals as being already voluntary members of a dense network of relatively pacific and cooperative associations of mutual aid. In this respect, Althusius retained much of the biblical view of covenant as a mix of kinship and consent.
The public sector, or commonwealth, is also a compound association consisting of towns, provinces, and then the commonwealth as a whole. Towns and cities are covenanted associations of guilds and professional corporations; provinces are covenanted associations of towns and rural estates; and the universal commonwealth is a covenanted association of provinces and large cities. Each of these larger associations arises from mutual sympathy and mutual need among the smaller associations who create the larger ones and delegate authority to them to perform area-wide functions which are beyond the scope and capacity of the smaller associations. Hence, the arrangement is quintessentially federal. The system is a matrix, not a pyramid; power originates in the smaller units and sovereignty is shared among the various associations.
Althusius developed his federal theory, in part, in response to theories of absolute, indivisible sovereignty being advanced by the French philosopher Jean Bodin (1530-1596) and others. Although Bodin also regarded the family as the building block of civil society. He treated sovereignty as arising from humans rather than God, holding that the people through their families transfer this sovereignty to a single person or group in an unlimited manner. As a result, this theory lends itself to both royal and democratic absolutism.10 In Europe, the Althusian idea that sovereignty can be shared among covenanted partners was a revolutionary conception of civil society that contradicted traditional organic and hierarchic understandings of the right order of things.
Philosophers and Jurists Try to Save the Holy Roman Empire
It is no coincidence that Jean Bodin, who developed the whole doctrine of modern political sovereignty, also denied the existence of the res publica Christiana upon which the medieval political order rested. Bodin claimed that there was no universal political authority after the end of the Roman Empire, that the individual states were completely independent externally and internally. He even went so far as to claim that the Roman ius gentium could not be the basis of international relations since it was based upon the idea of a common universal polity and did not reflect the way the world was structured around independent entities. This began the movement to the modern state system, according to which politically sovereign states possessing full external independence and internal concentrations of power became the only acceptable political systems. All polities that did not conform to this model were to Bodin "irregular" or at worst merely systems of states, in other words, alliances.
Left out of this system were the Holy Roman Empire, Switzerland, and the United Provinces of the Netherlands. Switzerland and the United Provinces already were well on their way toward federalism, but the future of the Holy Roman Empire was very much in doubt. The political thought of Althusius was a direct challenge to Bodin and Bodinian principles in an effort to provide a theory upon which to base the political reformation of the Holy Roman Empire.
After Althusius, the two most important were Gottfried Wilhelm Baron von Leibnitz (1646-1716) and Ludolph Hugo. The first was a librarian and the second the official historian of the Duchy of Hanover at the heart of the Holy Roman Empire. Leibnitz, who is better remembered in history as a mathematician, was also a philosopher learned in history, law and science. He also was the first president of the Prussian Academy.
The proximate target of their thinking was the thought of Samuel Pufendorf (1632-1694), one of the pioneer international lawyers of the modern school who wrote De Jure, Naturae et Gentium. Pufendorf, although following the idea of the political compact, held that the governmental political entity thereby established was the nation-state and that the international "system" was comprised of nation-states as the repositories of sovereign powers.11
In Pufendorf's view, on the one hand no member state of a confederation had to go along with majority decisions of the confederated states and, on the other hand, the other members could wage war against it to force it to do so, vitiating the whole ideal of federalism, which was to estabish a system of interstate constitutional relations based on negotiation and comity that would prevent either the former eventuality or the latter necessity. Pufendorf became the predominant continental European view of federalism. For example, in Diderot's famous Encyclopedie, the fullest expression of French Enlightenment thought, the entry on federalism, entitled etats composees (compound states) and written by Chevalier des Jaucourt completely followed Pufendorf.
Hugo and Leibnitz, on the other hand, were able to think federal rather than statist,12 hence they continued the Althusian covenantal tradition. Hugo published his book De Statu Regionum Germaniae in 1661, in which he presents a theory of federalism in discussing the status of the region. While Hugo's argument begins from medieval premises, he soon moves on to modern ones and even draws carefully designed distinctions between confederal leagues, decentralized unitary governments, and what subsequently were called federations.13
The first is based on alliances such as the Achean League. The Roman Empire is the model of the second. "There were lower special administrations, not really separate civil societies, whose magistrates were nothing more than the servants of the emperor." The third he referred to as "double government" and a territorial division of powers, "When the civil power is somehow divided between the highest and the lower governments, so that the higher manages those things pertaining to the commonwealth there, the lower those things pertaining to the welfare of the individual regions."14
According to Hugo, "while the regional states are still subject to the empire, their power is still universal and wide enough to seem to take something from the highest power." This was to become the typical German approach to federalism or constitutionalized power-sharing, but within a hierarchical framework. It exists even today in the German and Austrian federal systems.
Hugo wrote primarily as a statesman; he was not a philosopher. Hence his discussion is almost entirely governmental in the way discussions of federalism became in the twentieth century. This meant that philosophers paid him no attention and his views disappeared from sight until Gierke somewhat resurrected them in the nineteenth century. Leibnitz, on the other hand, may be considered the greatest German philosopher before Kant to bring to bear a philosophic perspective on political affairs. Federalism is only a small part of his body of work.
Leibnitz may have been even more interested in restoring the Holy Roman Empire and the reunited Catholic Church of Christendom than Hugo. But he was a modern nonetheless like Hugo, able to escape the Bodinian idea of statism. His analysis was not framed in terms of sovereignty but in terms of limited government, a federal, and hence covenantal, idea. Sovereignty was secondary, subordinate to majesty, the repository of authority of the universal empire. Sovereignty for Leibnitz was at most a comparative matter, indicating a degree of authority rather than the central repository of authority.15
Sovereignty, for Leibnitz, has to do primarily with the actual exercise of power by a "master of the territory" through "treaties, arms, and alliances." Leibnitz further declared: "It matters not whether he [the sovereign] holds his lands as a fief, nor whether he recognizes the majesty of the leader, provided that he be master at home and that he cannot be disturbed except by arms." Germans referred to this as "territorial superiority." Leibnitz's definition of majestas, "the right to command without being subject to commands," came with the caveat that "sovereignty does not exclude the obedience that one owes to the orders of a spiritual or temporal leader." He sought to remove sovereignty from states and invested it in universals. Leibnitz directly addressed the Hobbesian definition of sovereignty and critically at that: "If we listen to Hobbes there will be nothing in our land but out and out anarchy," this after what Reily refers to as an accurate description of Hobbes' thought.16
Leibnitz goes on: "Hobbes' fallacy lies in this, that he thinks that things which can entail inconvenience should not be borne at all," something that for Leibnitz was "foreign to the nature of human affairs."17 Thus he has a covenantal dynamic based on his understanding of human relations as well as political structures.
Leibnitz understood the dynamic and realistic dimensions of his definition, saying that "when the supreme power is divided, many dissensions can arise; even wars, if everyone holds stubbornly to his own opinion." He argues that experience shows that "men usually hold to some middle road, so as not to commit everything to hazard by their obstinacy,"18 suggesting that in both Poland and the United Provinces of the Netherlands, where nobles or towns have veto power, the "prudence and moderation of the whole most matters to turn out well enough." Riley says, "Political life in general, he thought, was not made possible by 'mandates through the plentitude of power,' but by 'negotiations and discussions.'"19
Hobbes, to Leibnitz, demonstrates that his theories can work "only in that state whose king is God, whom alone one can trust in all things."20 Leibnitz distinguished between confederacies that were closer to the international lawyers' theories of federalism, and unions which his theory described. His sense of the realities of power and political dynamics was good but his anti-sovereignty theory was rendered outdated by the demands of the political powers of the times, who looked to other philosophers for justification, not content with the limits that the medieval empire and Leibnitz would have imposed upon them. Thus events rapidly overtook Leibnitz's thought. The emergence of states such as Prussia, Bavaria, and Saxony from within the declining Holy Roman Empire reinforced the state system and the philosophies that supported it and displaced those who would have saved the imperial system even on more modern grounds.
These theorists of the Holy Roman Empire not only were far more grounded in reality than the more famous political philosophers but also were close to the many leagues and confederations that came into existence within the weakened Holy Roman Empire at the end of the Middle Ages. While the legal and jurisprudential terminology used at the time did not identify them as such, for those theorists who were trying to build a new federal theory of the empire, those confederacies were at the very least suggestive of what might be.21
It was only in the early seventeenth century that they were able to begin to develop an independent theory of constitutional law for the empire, breaking with the Roman law patterns of the Middle Ages. This new constitutional law drew upon Germanic as well as Roman sources and more contemporary materials as well. The founder of this new constitutional law was Dominicus Arumaeus (1579-1673), who published five volumes of monographs and dissertations which he or his colleagues wrote under the title Discursus Academici de Juro Publico between 1616 and 1623. He was joined by Johann Limnaeus (1592-1663), who wrote the first comprehensive and systematic commentary on the constitution of the empire proper, Jus Publicum Imperii Romani Jermanici, which he published in three volumes in Strasbourg between 1629 and 1632. At the same time, Hermann Conring (1606-1681) proved that Roman law had been introduced into Germany only since the fifteenth century.22
Another constitutional lawyer of the time was Ripolitus Alapide (1605-1678), a pseudonym for Philipp Bogislaus von Chemnitz who published De Ratione Status en Imperio Nostro Romano-Germanico in 1640. In it he accepted the modern concept of sovereignty but did so entirely on Germanic principles. Meanwhile, acceptance of Bodin's doctrine of sovereignty was spreading and conflicting with the alternate concept of majestas which was part of the universal empire rather than a matter of states. So in 1648 the Peace of Westphalia essentially ended the empire's constitutional development by passing powers to those of its constituent states who sought them, thereby enabling them to assert their authority over the next century as well. Thus political or juridical theories designed to strengthen imperial federalism had nowhere to go in practice.23
Moreover, those who continued to try to develop imperial theories of constitutional law remained so under the influence of Aristotle that they did not adopt the new political science which, in the years after 1648, rapidly became accepted. Althusius, the precursor of these theorists, came closest to breaking out of those Aristotelian medieval limitations and some would argue that he did, but his successors did not follow his lead and hence his breakthrough withered. Even where his influence in other respects can be found, the closest any of them came to federal ideas was in the idea of landeshoheit or territorial supremacy with regard to certain governmental activities, a concept advanced, inter alia, by J. Lampadius (1593-1649)24 that could be combined with conjunctim, that is to say, a share in the empire's summum majestus as members of the imperial diet, a concept advanced by B.C. Carpzov (1595-1666), a jurist of the time.25
Ludolf Hugo was a student of Conring's. He already began to cross the threshold to modernity by elaborating more precisely and systematically on the idea of the civitas composita (compound polity) initially advanced by Christoph Besold (1577-1638), a jurist who wrote much on legal and ecclesiastical subjects.26
Besold in turn had taken the idea from P.H. Hoenonius (1556-1640), who taught law at Herborn (Althusius's alma mater) and published his Disputationum Politicarum Liber, which relied heavily on Althusius.27 Gierke says that Hoenonius can be seen as "following Althusius throughout."28 Hoenonius distinguished between the res publica simplex consisting of one state and the res publica composita, just as Althusius does. Hugo then picked up on the idea and used it as one of the fundamental bases of his theory. Eulau suggests that "Hugo seemed well aware of the constitutional differences between federalism and decentralization: if the territorial authorities are merely officials of the 'superstates' and obey its orders, the states would be nothing but provinces; the German territories, however, although subordinate to the Empire as a whole, are independent and must therefore be regarded as real states."29
Ludolph Hugo, indeed, was the first to distinguish between federalism and decentralization and between federation and confederation. In doing so, he broke out of the Aristotelian mold and entered the Althusian, primarily concerned with the practicalities of relationships, structures, and powers, taking the Holy Roman Empire as it was and trying to improve it rather than trying to understand how it came to be or on what philosophic basis it should be reconstituted. Thus Eulau writes: "Hugo did not want to write a treatise on the constitution of the Empire, but on territorial constitutions; and secondly,... he did not write a heated political pamphlet as did most of his contemporaries, but a learned dissertation."30
Gierke, in his book on Althusius, states that, whatever Hugo's limitations, after him "the concept of the composite state never disappeared again completely from political science."31 Nevertheless, neither was he successful in shaking the statist foundations of continental European political thought. Even those who commented on his works did so in such a way that they returned to the conventional wisdom.
Liebnitz, by focusing on sovereignty as well as the empire's constitution, carried the discussion of imperial federalism further without necessarily contributing to the larger questions of covenant theory. Liebnitz distinguished between a confoederatio and a unio, explaining the difference as the same as between a societas, a body accidently composed of individuals who remain individuals, and collegium, a new civil person with a corporate personality. In private law, the decisions of a societas require unanimity, while those of a collegium, also called a corpus, may be made by majority vote, bringing us close to the operational issues involved in covenant theory. Implicit in these discussions, especially those of Hugo and Liebnitz, was the idea of political covenant or compact, especially when their discussions are contrasted with that of Pufendorf, who had remained faithful to the conventional wisdom and saw such linkages among states as merely contractual. Moreover, by using the term foedus to describe the systems they were addressing, they give us a clear clue and image of the covenantal character of their thought.
In the eighteenth century, Christian Thomasius (1655-1728), a jurist who bitterly opposed Aristotle and scholasticism and founded a school of political science that continued for several generations, emphasized the compactual basis of the federal relationship rather than issues of sovereignty.32 He and his school kept alive the discussions of federalism until they moved back on stage toward the end of the century. In conclusion, it may be said that at least as long as political scientists and jurists wrote in Latin, which was on the continent at least until the mid-eighteenth century, the use of the term foedus or related terms kept the idea of covenant prominently in mind for all those who wrote on the subject of the political organization of composite polities.
While Althusius emerged a distant second to Bodin in the early modern struggle of statism versus federalism, his influence continued in a minor but not insignificant way through the seventeenth century and into the eighteenth, especially among the jurists but also among certain political theorists of the Holy Roman Empire who sought federal solutions to the problems of reforming Germany, by then virtually synonymous with the extent of the Empire that survived. Students of Althusius's writings carried on his federalist political scientific reinterpretation of the covenant tradition as it had been reformulated through Reformed Protestantism. They not only crossed the bridge that he built but tried to build a continuation of it over the next chasm. Although they were not successful, they did succeed in transmitting the Althusian tradition from generation to generation among that small minority who rejected modern statism and sought a different -- federalist -- path.
Ultimately, the tradition they passed on was to resurface, primarily as an intellectual one, in nineteenth century Germany (see Chapter 4). Some of that thinking may even have carried over into the German Bund of the nineteenth century, the last of the modern confederations. But in the end nationalism and statism proved to be policies too seductive and they transformed Germany into a federation on statist principles modified by the necessities of reality and then, in the twentieth century, into a totally anti-covenantal Nazism, the totalitarian antithesis of all that Althusius had sought to teach. Perhaps the only link between the two was the puzzling thought of Carl Schmitt who began as a federalist and ended up a defender of Nazism.33
Yet even as Carl Schmitt was perverting German federal thought, Carl Friedrich, another great German political scientist and theorist, was escaping to the United States where at Harvard University he reestablished the Althusian line. In 1935 Freidrich published the Politica Methodice Digesta in full in its original Latin with a long introduction in English. While in that introduction Friedrich emphasized the organic rather than the federalist dimensions of Althusian thought, perhaps influenced by the totalitarian turn of so many of Germany's philosophers, he himself carried on the federalist tradition, communicating it to a new generation in the United States and the world, one that stood ready to pick up the reins of political thought, analysis, and action after the Nazi state and ideology collapsed in the gotterdammerung of World War II. They were to teach or otherwise find their way to a new postmodern federalism in the generation following the war and begin the process of replacing or significantly modifying the statist paradigm with a federalist one.
Meanwhile, back in the eighteenth century, another branch of Althusian thought crossed the Rhine into France. Those two countries, so different yet so alike (different in their response to demands for national unity and political organization; alike in their striving for the hierarchical administration of their governments and in their appetites for world power). Certainly in France, Althusian federalism could not replace Bodinian statism, but in a line that extends from Montesquieu through Benjamin Constant to de Tocqueville, Proudhon and into the twentieth century with the post-World War I integral federalists and on into the post-World War II personalists, exemplified by Alexandre Marc, Denis de Rougement, and Robert Aron, the ideas similar to those of Althusian federalism were developed, preserved and modified, always having at least one or more articulate advocates. A synthesis of the two actually can be found in the theo-political thought of Martin Buber, a German Jew who was drawn to Personalism in the interim period. Althusian ideas were to resurface after World War II in concrete ways, especially in advocacy of European federalism and at least some of them found a home in the theories associated with the establishment of the European Union.
1. Daniel J. Elazar, Covenant and Polity in Biblical Israel (New Brunswick, N.J.: Transaction Press, 1994); Aron Wildavsky, The Nursing Father: Moses as a Political Leader (University, Ala.: University of Alabama Press, 1984).
2. Leo Strauss, Hobbes, ed. Keith C. Brown (Oxford: Blackwell, 1965).
3. Cf. eg. Leo Strauss, Persecution and the Art of Writing (Chicago: University of Chicago Press, 1988); Natural Right and History (Chicago: University of Chicago Press, 1953).
4. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953).
5. Elazar, Covenant and Polity. op. cit; idem., Covenant and Commonwealth: The Covenantal Tradition from Christian Separation Through the Protestant Reformation (New Brunswick, N.J.: Transaction Press, 1995).
6. Lord Acton, Essays on Freedom and Power (New York: Meridien, 1955); Lectures on the French Revolution (London: Macmillan, 1910); Lectures on Modern History (London: Collins, 1966).
7. The Politics of Johannes Althusius, trans. with an introduction by Frederick S. Carney (London: Eyre and Spottiswoode, 1965).
8. Gierke, Johannes Althusius und die Entwicklung der Naturrechtlichen Staatstheorien, 3rd ed. (Breslau: M. and H. Marcus, 1902).
9. Harold Laski, The Rise of European Liberalism (London: G. Allen and Unwin, 1936); Carl Friedrich, Constitutional Government and Democracy (Waltham, MA: Blaisdell, 1968).
10. Jean Bodin, Six Books of the Commonwealth (Cambridge, MA: Harvard University Press, 1962); Julian Harold Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge: Cambridge University Press, 1973).
11. Samuel Freiherr von Pufendorf, De Jure Naturae et Gentium Trans Libre Acto, translated by C.H. and W.A. Oldfather (Oxford, Clarendon Press, 1934).
12. Patrick Riley, "Three Seventeenth Century German Theorists of Federalism," Publius, vol. 6, no. 3 (Summer 1976), pp. 10-11.
13. Ludolph Hugo, De Statu Regionum Germaniae (Helmstadt: Sumptibus Hammianis, 1708); Reily, p. 64.
14. Hugo, Section 8, quoted in Riley, p. 23.
15. Gottfreid Wilhelm Leibnitz, Entretien de Philarete et D'eugene (1677) in Oeuvres de Leibnitz, edited by A. Foucher de Careil, vol. 6 (Paris: Firmin Didot Freres, 1865), p. 347.
16. Reily, p. 69.
17. Patrick Reily, The Political Writings of Leibnitz (Cambridge, England: Cambridge University Press, 1972), pp. 46-47.
18. Ibid., p. 47.
19. Riley, "Three Seventeenth Century," op. cit., p. 28.
20. Reily, Leibnitz, pp. 47-48.
21. See Heinz H.F. Eulau, "Theories of Federalism under the Holy Roman Empire," in American Political Science Review, vol. 35, no. 4 (August 1941).
22. Hermann Conring, De origine juris germanici commentarius historicus (Helmstadii: Henningi Mulleri, 1643).
23. Eulau, op. cit.
24. J. Lampadius, De republica Romano-Germanica liber unus (Helmstadii: Hennigi Mulleri, 1671). Otto von Gierke, Das Deutsche Gnossenschaftsrecht, trans. by Ernst Barker as Natural Law and the Theory of Society 1500-1800 (Cambridge: Cambridge University Press, 1950).
25. B.C. Carpzov, Commentarius in legem regiam Germanorum: sive capitulationem imperatorium (Lipsae: Sumptibus Tobiae Riesens, typi, exscribebat Johannes Bauer, 1651).
26. Besold's works are discussed in Gierke, Genossenschaftsrecht, and briefly in Eulau.
27. P.H. Hoenonius, Disputationum Politicarum Liber, 3rd ed. (Herborn, 1615).
28. Gierke, Johannes Althusius und die entwidklung der Naturrechtlichen Staatstheorien, 3rd ed. (Breslau: M. and H. Marcus, 1902); Gierke, Genossenschaftsrecht, vol. 4.
29. Eulau. Eulau in turn relies on S. Brie, Der Bundessataat (Leipzig, 1874), pp. 17-20.
30. Eulau, op. cit.
31. Gierke, Althusius, p. 246.
32. Eulau, p. 20.
33. Carl Schmitt, "The Constitutional Theory of Federation," Telos, no. 91 (Spring 1992):26-56.