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Avant le contrat social

François Foronda

Annexes. Résumés des communications non publiées

The idea of a contract of government in the political theories on Empire of the 14th and 15th centuries

— Résumé —

Helmut G. Walther

Texte intégral

1Marsilius of Padua is perhaps the most prominent but not the most influential representative of political theory in the 14th century. In his Defensor Pacis he avoids explicitely to construct a contractual base when he presents the development of political human communities. His Aristotelian anthropological view of man as a animal sociale et politicum relies more on human experiencia than on the Aristotelian inclinatio naturalis so vehemently stressed by Aquinas and his school. Therefore you can find no contractual relations neither in Marsilius’description of the rise of the state as the perfect human community nor in his treatment of the Emperor’s rights as pars principans and of its relations to legislator humanus.

2Just a different case is given with the political theories of learned medieval jurists. Legists knew the topic of the contract of government from their sources of Late Antiquity, especially from the problem of lex regia. The Canonists were well aware of the problem by Gratian’s treatment in his Concordantia Discordantium Canonum along with passages from the Early Fathers’about the development of political communities and the problems of natural law, liberty, Adam’s fall and the necessity of instituting government.

3At the turn to the 14th century the participants of both parties within the conflict between Philip IV and Pope Boniface VIII used as important arguments historical recourses to the rise of temporal government as a process. The contract of government’s construction gained now with these theorists the state of a basis within the struggles about the concept of sovereignty of temporal rulership. Especially in the field of imperial government participants of an autonomous right of election by the princes of the Holy Roman Empire relied on history in Carolingian and Ottonian times and connected those past with the conception of a contract of government. They used the themes to parry the Papacy’s political claims on emperorship from the times of Henry VII to Lewis the Bavarian. With his influential treatise on the rights of Kingdom and Empire (Tractatus de iuribus regni et imperii, 1339) the learned jurist Lupold of Bebenburg (1300-1363) succeeded in combining both argumentative elements and could advance towards extreme solutions expressed by the papal curia as well as by participants of the Court of Lewis the Bavarian.

4The Law of the Goldene Bulle (1356), regulating the king’s election and the state of the seven prince electors in the Empire, used the governmental contract theory as well did political theories on the Empire in the period of Conciliarism in 14th and 15th centuries. When Nicholas of Cusa (1401-1464) formulated his treatise De Concordantia Catholica (1434) at the Council of Basle he described the governmental basis in the Empire as imperial rights which had been historical obtained and legitimated by consensus. He described as theory what was then already practice and consense of Princes and Electors about Empire’s Constitution: The Estates claimed participation in leading the Empire on the basis of a treaty founded in old times and enlarged and reformed by new treatises between head and members concerning competences in government, financing and jurisdiction.

5The Theory of government shaped therefore the background of the so called «Reichsreform» from the 15th to the 16th centuries as well as the practice of policy by the princes in the Empire.


Friedrich Schiller Universität, Iéna

© Éditions de la Sorbonne, 2011

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