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Problem of formation and development of medieval German statehood and the right in the context of a domestic and German historiography


The purpose of article is in tracking development of the German statehood and the right in the early Middle Ages. It is about methodological concepts and theories as traditional German historiography of the state and right, and modern historiography. The traditional German methodology of the state and the right is based on the principles underlain by "Historical school of the right" according to which "the people psychology" is embodied in the right. It is shown including in formation of public and state ways. Modern historians and philosophers seek not only to emphasize specifics and an originality of a historical way of Germany, but also to critically estimate and track "a special way" of formation of national German statehood and the right. Keywords: the statehood, the right, "historical school is right", legitimation vlastiyo methodological concepts and theories.

The problem of formation of the state in the early medieval history of Germany, as well as emergence of the German legal tradition, represents relevance, as for domestic mediyevistiki1, and the German historiography up to sovremennosti2. And consideration of issues of formation of the German statehood and the right usually happens in the context of any given methodological approaches which any given political circumstances often influenced. Political engagement and theoretical orientation are characteristic generally of the German historiography.

Throughout the 19th century up to the first half of the 20th century in on the German historiography, following the principles L. of von Ranke, the principles of historicism had the prevailing impact, and sought to write history "as it actually and was". Preference was given to political history, and methodological approaches developed in line with the German idealism.

The concept of a traditional German historiography of the state and the right is based on the principles underlain by "Historical school of the right" according to which the "people psychology" shown including in formation of public and state ways is embodied in the right. As N.F. Kolesnitsky fairly noticed, representatives of school of the German right began to interpret "development of society as development of the whole complex of "rights" (YaesYep). "State law" ("81aa1gesy"), "private law" ("Рпуа^есЫ"), "the right of the unions and corporations ("Oepozht&sIaA& of a ypyokogrogaiugesa"), "ecclesiastical law" and still the special "right of private church" (Eigenkirchenrecht), "the lenny right" ("Ekepgesng"), "the city right" ("Staadtrechf), etc. replaced with themselves the real history of public life. The right and caused by it

"device" ("Yaesa of und Verfassung) began to cover all richness of concrete historical reality. The problem of origin of feudal fragmentation at them consists in the statement of the right of the senyorat ("Grundherrschaft"), the problem of emergence of medieval towns comes down to a problem of origin of the city right and the city device ("Stadtrecht und Stadtverfassung), emergence of territorial principalities is represented as process of assignment of the highest state rights ("to Landeshoheif) large feudal possessors, etc." 3.

Since the end of XIX - the beginning of the 20th centuries in the German historiography of steel more distinct to be shown sotsiokulturnye4 and social and economic tendentsii5. Having refused idealization and politicization of the national past, historians of social and economic school of G. Shmoller began to show interest in the real economic relations which created a basis of the state and the right. This trend was developed in works of representatives of social and structural history (1960-80) seeking to analyze the restrictive political, social and economic conditions which provided process of formation of the German statehood and prava6. This circumstance caused specifics of the German historiography of the second half of the 20th century in difference from the traditional historiography giving a priority "to legal forms of the state life. We will not find in it even the image of the political relations. All covered dead legal forms, institutes, categories which the German historians vainly tried to inspire and force to make personal growth" 7.

The problem of origin of the state and the right in Germany was an object of a complex research for historians of the German school of the right (F.K. von Sawinya, G. Gugo). The ideas of this school had significant effect on the German historiography up to the beginning of the 20th century Friedrich Karl of von Savinya (1779-1861) was one of representatives of historical school of the right. He claimed that the right of each people consists gradually of its historical fate, customs and traditions, so-called "national spirit" ("Volksgeisf'). Therefore, any legislative activity could not be any, torn-off from the people and its customs. Following this logic, it was impossible to change for a short time the national legal system created throughout centuries and to impose to the people laws alien to its nature. Legal reforms had to take place gradually. "The right itself is developed, - claimed K.F. Savinya, - in national spirit and for the denial it has the body - common law. The law can constrain natural process of the right only. The legislator will best of all carry out the task if to be limited to authorization of the norms which are already developed by national consciousness" 8.

The historian of the right Otto a background of Mr. irke (1841-1921) challenged the ideas of historical school of F.K. von Sawinya. He understood as the state "the organization of all people, and those which dominate, and over what dominate, - the organization expressing political and legal unity

people" 9. Refusing to follow the ideas of a providentsializm, O. Girke laid the foundation of scientific understanding of origin, including the medieval German state. He assumed that else before emergence originally of the government there was a power public, acting on behalf of all people.

O. Girke assumed that "initial communities of people represented free communities ("Genossenschafen"). During this period there was still no division into the economic and political unions. Economic associations ("Gemeinde", "Genossenschaften") were at the same time and political. These initial communities decayed as a result of formation of a private property on the earth and divisions before of equal people on property classes (free and not free). The formed large land property became a factor of political domination ("Herrschaft'). She created new type of associations ("Verbande") which are connected not by cooperation of equal individuals, but domination over them uniform political sily10 inside.

"The medieval state", "the lenny state" ("Lehenstaat') is even chronologically something absolutely other, than what we call the feudal state. These names belong only to the state of the period till 13th century. The state of the previous period is called "Old German" ("Der altdeutsche Staat"), the state of the subsequent period here - "modern", "new" ("modern Staat").

The modern German historiography considers the first form of the German state the "Old German" state or in a different way "the national kingdom" (" VolksOnigtum").

Representatives of a traditional German historiography refer emergence of early medieval German statehood, or "the national kingdom" (" Volkskonigtum") to the period late antichnosti11. Since the end of XIX - the beginning of the 20th century the German historians began to carry date of emergence of the state in Germans to the period of decomposition of the franksky monarchy, and to include an Old German social order in which actually only arose state vlast12 in a concept of statehood.

Modern researchers of a problem of origin of Old German statehood do not see its significant changes upon transition from "the ancient state" to "the early feudal state" breaking the principles of state system. The base of early medieval German statehood was formed by the relations of personal dependence and a direct connection of the vassal with the señor, but not domination over the territory.

In the 10th century in the territory of modern France and Germany were located the earth of two kingdoms: Western and East Franconia. They were "relics of the last big era of political unity" of Western Europe united by Charles the Great's efforts - the founder of a dynasty of Karolingov13. Its empire, though quite short time, united large territories: from Atlantic to Elba, from the North Sea to Rome.

After the death of the last vostochnofranksky Carlovingian the country appeared without ruling dynasty. In this regard before the breeding nobility rose

question of ways of development of the kingdom: or to it to remain separate, or to reunite under the power of a new dynasty. In 911 g east francs and saxophones belonging to the German nationality gathered in verkhnefrankonsky Forkhgeym and "by council" chose Otton Saksonsky as the new king of frankonets of Conrad (911-918). Later Bavarians and shvaba joined them.

Thus, four tribes which became duchies showed that their community is more important for them, than subordination of a Carlovingian dynasty which still continued to exist in Western Frankonii14.

Having chosen Conrad as the king, magnates of the German tribes confirmed the independence of a Carlovingian dynasty of the Western Franconia. Conrad was not a Carlovingian. He was connected with Carlovingians related bonds that, certainly, raised prestige of its sort. Though with Carlovingians also leaders of other large tribes had the same family relations. Conrad, nevertheless, was the head of the most notable and one of the strongest German tribes - francs.

Important changes of state system happened later, during an era of formation and development of territorial principalities. In that time, according to modern experts, the German statehood was created and there was a state which was based not on association of "the individuals given the special rights", and on domination over the whole territory and it naseleniyem15.

The great value in the concept of origin of the state and the right at Germans is given to a problem of the royalty ("Kdnigtum"). Owing to ideas of the medieval person of sacral value of the royalty, she acted as the legitimating statehood basis.

As it is represented, studying specific national peculiarities of legitimation of the power of monarchs in Europe clears up some aspects from the history of statehood of the European countries of an era of the Middle Ages. Some of these features can be disclosed through forms of legitimation of the royalty. For the early Middle Ages, hypothetically, them it is possible the representative through set of personal, patrimonial, sacral and symbolical and legal forms of legitimation. They can be tracked on examples of the "classical" countries of medieval European history - France, England and Germany. In France and England the legitimation of the royalty was mainly connected with its consecration through the unction ceremony made by priests, "a royal miracle" 16. The Christian ceremonies and sacraments connected with its consecration as, however, for all countries of early medieval Europe, but, other forms of legitimation caused by specifics of historical development of the country became priority also had a great influence on mechanisms of perception of the royalty in Germany.

For the Western European countries of an era of the Middle Ages as E. Kantorovich fairly noticed, political thinking represented nothing but sekulyarizirovanny theology, and ideas of fidelity and pre-

realities, most likely the concept veiled by christian teaching medieval royal vlasti17.

A sacralization of supreme authority - the wide phenomenon in a medieval era. The leading western historians and anthropologists addressed studying a phenomenon of a sacralization (M. Weber, M. Blok, E. Service, of R. Carneiro, R. Salins, etc.).

The selectivity as property of the royalty in the East Franconia lands on which there is a state, defined specifics of the most German statehood.

During the crowning of frankonets of Conrad I (its elections by influential princes who wished to show that "their community (in election - a bus) was more important for them, than subordination of a Carlovingian dynasty which still continued to exist in the Western Franconia" 18 became 911-918 primary act.

According to tradition also Henry's successor - his son Otton was elected by the emperor (936-973). Widukind, the monk of the Novokorveysky monastery (apprx. 950-1004), in the chronicle about board of a Saxon dynasty notes that the crowning ceremony over Otton was made not by representatives of clergy that already entered by then tradition in France, and dukes who "put the new duke on the throne built there, having given to it hands and having solemnly promised it the fidelity and the help against all enemies and so on the custom made him the king. While dukes and other officials made all this, the archbishop with all clergy and all other people expected an exit of the new king in a basilica" 19.

One of the most debatable problems in the history of ancient Germans is the question of origin of the power designated usually as royal. There are several versions about origin of the term which is often transferred in Russian translation as "king". The most widespread of them is Tacitus's version. According to the version of this historian, "king" ("rex") - the highest notable the tribe. Real Old German filling of the kuning functions (in future oglasovka "konung", "Konig") corresponds at all not to a position (completeness of the power in military and civil cases, the highest honors and eminence), and to personal merits.

The problem of legitimation of the royalty and, thereby, a problem of early medieval German statehood, is based on a hypothesis of its origin. As the first stages of formation of the royalty the German historiography usually are recognized ("Sakralkonigtum") (sacral, religious the basis, the royalty) and ("Heerkonigtum") (military royalty) 20. Priests, especially Odin's priests, owing to the right of fortune-telling recognized by tribespeople behind them and communication with gods were carriers of the sacral royalty. Could treat "military" kings within Latin terminology ("princeps"), ("dux"), ("rex"). Differences between reksa ("rex") and duksam ("dux") - no more than rhetorical antithesis. Eminence ("rex") and valor ("dux"’) - the integral qualities both rex, and duks.

needs to distinguish the private power over small suite of the interim leader, from the command power of public nature of duks and rex as it was business of all tribe. Many names of the German duks are known to us, but only the few from them became reksa. Transformation of duks in rex is connected with gain under their management of the tribe or the union of tribes of new territories and their fixing is (at least temporary) for itself.

Applicants for the royalty well realized existence of the main obstacle in a way to establishment of the autocracy. The opposition of the nobility possessing the armed suites was it. Therefore, seeking to increase own teams, they willingly accepted in them not - Germans. The progressing "merge of the people" led to the fact that teams of "military kings" represented not ethnic, but political formations. It, in turn, became the most important prerequisite of genesis of statehood at ancient Germans.

Any of military leaders of the 1st century AD did not manage to found independently in the long term the third, highest stage of the personal public authority, ("StammeskOnigtum") (the royalty over all tribe and on behalf of all tribe with the basis of the dynasty).

On the basis of the above hypothesis of origin of the royalty at ancient Germans, it is possible to assume that for them forms of personal and patrimonial legitimation were traditional. As Christianization of Western Europe began and extended mainly from the West Franconia lands, beyond Rein the Christian traditions and sacraments began to be cultivated later and to a lesser extent influenced formation of power institutions, than in territories of the former Roman Empire. Moreover, in lands east of Rein the paganism which directly connects tradition of legitimation of the sacred power of the governor or with his exclusive qualities, first of all military qualities and organizing abilities, or, with ideas of sacral power of a sort long enough remained. The sort which throughout several generations left talented commanders originally numerous, was allocated over time with tribespeople the sacral power which is descended. On this soil there were legends that the sort originates in pagan gods. "Gotha (the German tribe - a bus), - according to the ostrogothic historian of Jordan, - explaining the victories with happy influence of the leaders, did not wish to see in these last mere mortals; they named them experts, that is demigods" 21. It gives to us some grounds to claim that Germans had a custom to mythologize origin of the governors (the myth could arise later).

At Germans personal and patrimonial forms of legitimation of the royalty prevailed. Confirmation to it is preservation throughout all Middle Ages of power and the actual independence otdel-

the ny childbirth which were originally representing childbirth of leaders, governors. Their heads further, having subdued other childbirth, become breeding dukes. It is about formation of the union of the breeding duchies which formed its basis and strengthening of the power of magnates (breeding leaders). The German statehood during an era of the early Middle Ages was created against the background of weakness of the royalty, at preservation of influential and authoritative positions of the breeding nobility, and under the influence of the external threat which caused unity of the German tribes. Other feature of Old German statehood was the fact that leaders of tribes and representatives of the breeding nobility almost right after disintegration of the empire of Charles the Great began to show big independence concerning expansion of the possession and the influence at the expense of the royalty weakening during an era of late Carlovingians. Breeding duchies ("Stammesherzogtuemer) began to represent large territorial and ethnic formations, the power of dukes in which became continuation of the power of leaders of ethnic groups. Their union formed the basis of the German statehood during an era of the early Middle Ages.

Thus, in the first third Х^П of centuries Germany represented in general the uniform state. Poor development of feudalism, external threat and active policy of centralization of the first German kings promoted the statement of the early feudal monarchy, temporary strengthening of the royalty. Kings managed to create national associations from former breeding duchies. At the same time the absence of ethnic community, weak economic relations between certain duchies did unity of this state relative. During this period there was a considerable territorial expansion of the German state. As a result of accession of a part of Italy, Burgundy, the Czech Republic and education Brandenburg, East and other brands there was an extensive empire.

The German kings from 10th century received a title of emperors of "The sacred Roman Empire". Temporary strengthening of the royalty was promoted by Otton's activity by I (936 — 973) from a dynasty Lyudolfingov (Saxon dynasty) who in fight against dukes tried to rely on church land tenure and church institutions. Otton's crowning of the I, second son Henry I and appointed him the successor, shows a circumstance, new to early medieval German history: refusal of the choice or appointment of the emperor by royalties from seniors in a sort - custom of Carlovingians, and appointment of the lineal heir on condition that right of succession did not extend to all members of the royal house.

1 L.T. Milskaya. The secular ancestral lands in Germany the VIII-IX centuries and its role in enslaving of the peasantry. M of 1957; N.F. Kolesnitsky. Evolution of early feudal regional and local state system and growth of the patrimonial power in Germany in IX - the first half of the 12th century Sb. "Middle Ages", issue IX, 1957; It. "The sacred Roman Empire" according to the West German historiography.//Middle Ages. Issue XVIII.

Leningrad, 1959; A.I. Neusykhin. The main problems of history of the peasantry in Germany the IX-XI centuries//the Middle Ages. Issue XIII. Leningrad, 1958.

2 Mitteis H. Der Staat des hohen Mittelalters, Weimar, 1955; Mayer Th. Die Konigsfreie und der Staat des fruhen Mittelalters. Lindau und Konstanz, 1955; Flekenstein I., M.L. Bulst-Thiele, Jordan To. Sacred Roman Empire: Formation era. SPb., 2008; G. Kenigsberger. Medieval Europe. 400-1500 of M., 2005;
3 See: N.F. Kolesnitsky. A research on the history of the feudal state in Germany (IX - the first half of the 12th century). M, 1959. Page 5.
4 Lamprekht K. Istoriya of the German people in 2 vol. of M., 1894
5 G. Shmoller. The national economy, science about the national economy and its methods. Economy customs and right. Division of labor. M, 1902; Schiler U. G. Historische NationalOkonomie und Sozialstatistik als Gesellschaftswissenschaften, Koln-Wien, 1971
6 Conze W. Die Strukturgeschichte des technisch-industriellen Zeitalters fur Forschung und Unterricht. Koln, 1957;

Kocka J. Sozialgeschichte zwischen Strukturgeschichte und Erfahrungsgeschichte. In: W. Schieder und V Sellin. Sozialgeschichte in Deutschland. - Gottingen, 1986.

7 See: N.F. Kolesnitsky. A research on the history of the feudal state in Germany (IX - the first half of the 12th century). M, 1959. Page 5.
8 G. Skirbekk, N. Gilye. Sawinya and Ranke's historical school//philosophy History. Under the editorship of G. Skirbekk, N. Gilye. The lane with English M.: VLADOS, 2003. Page 483
9 See: N.F. Kolesnitsky. A research on the history of the feudal state in Germany (IX - the first half of the 12th century). M, 1959. Page 5.
10 Gierke O. Genossenschaftsrecht. Bd. I. Berlin, 1863. S. 69.
11 Lamprekht K. Istoriya of the German people in 2 vol. of M., 1894
12 Flekenstein I., M.L. Bulst-Thiele, Jordan To. Sacred Roman Empire: Formation era. SPb., 2008; G. Kenigsberger. Medieval Europe. 400-1500 of M., 2005
13 Die Deutschen: Vom Mittelalter bis zum 20. Jahrhundert/Hrsg. von G. Knopp, St. Brauburger, S. Scherrer. Miinchen, 2008. S.28
14 See: Flekenstein I. Ottonov Imperiya in the X century//the Sacred Roman Empire: Formation era. SPb., 2008. Page 94.
15 G. Kenigsberger. Medieval Europe. 400-1500 of M., 2005
16 "the royal miracle" is understood as belief in an opportunity by imposing of a hand of the monarch to cure patients with a scrofula. About it: Block M. Kings-wonder-workers. An essay of the ideas of the supernatural nature of the royalty widespread mainly in France and in England. M.: Languages of the Russian culture, 1998. Page 112.
17 Tsit. on: Patterson O. Freiheit, Sklaverei und die modern Konstruktion der Rechte//Die kulturellen Werte Europas/Hrsg. Von H.Joas und K. Wiegandt. Frankfurt am Main, 2005. S. 173.
18 See: Flekenstein I. Ottonov Imperiya in the X century.//Sacred Roman Empire: Formation era. SPb.: Eurasia, 2008. Page 18.
19 Widukind Korwejski. Acts of saxophones//History of Germany. The manual in 3 vol. / Under the editorship of B. Bonvencha, Yu.V. Galaktionov. Kemerovo: Kuzbassvuzizdat, 2005. T.3. Documents and materials.
20 The history of Germany in 3 vol. / Under the editorship of B. Bonvecha, Yu.V. Galaktionov. (T. 1. Since the most ancient times before creation of the German empire (1870)). - Kemerovo, 2005.
21 Jordan. About origin and acts of get. SPb, 1997. Page 122.
Hensley Curtis
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