Power and Law in Enlightened Absolutism – Carl Gottlieb Svarez’ Theoretical and Practical Approach

I. Introduction

The term Enlightened Absolutism reflects a certain tension between its two components. This tension is in a way a continuation of the dichotomy between power on one hand and law on the other. The present paper shall provide an analysis of these two concepts from the perspective of Carl Gottlieb Svarez, who, in his position as a high-ranking Prussian civil servant and legal reformist, has had unparalleled influence on the legislative history of the Prussian states towards the end of the 18^th century. Working side-by-side with Johann Heinrich Casimir von Carmer, who held the posts of Silesian minister of justice from 1768 to 1779 and Prussian minister of justice from 1779 to 1798, Svarez was able to make use of his talent for reforming and legislating. From 1780 to 1794 he was primarily responsible for the elaboration of the codification of the Prussian private law – the »Allgemeines Landrecht für die Preußischen Staaten« in 1794 (Allgemeines Landrecht – ALR) and the corresponding draft entitled »Allgemeines Gesetzbuch für die Preußischen Staaten« (Allgemeines Gesetzbuch – AGB) in 1791.

Carl Gottlieb Svarez was an advocate of the new school of natural law and thus convinced of the possibility of every circumstance in life to be governed by rules. At the same time, however, he felt deep loyalty towards the absolute monarch, which was not only due to his position as civil servant. The tension between the law and the ruler’s power entailed by these convictions shall be the topic of the present analysis. Svarez’ approach to the relation between law and power shall be analysed on two different levels. Firstly, on a theoretical level, the reformist’s thoughts and reflections as laid down in his numerous works, papers and memorandums, shall be discussed (section II). Secondly, on a practical level, the question of the extent to which he implemented his ideas in Prussian legal reality shall be explored (section III).

II. Svarez’ theoretical concept of power and law

Svarez produced a wide range of theoretical material reaching from lectures to letters and memorandums as well as papers directed at the general public. The following analysis of his views on power and law shall be based mainly on the so-called Crown Prince Lectures. These are lectures given by Svarez between 1792 and 1793 as an introduction to state affairs and jurisprudence for the crown prince, later King Frederick William III.1

I. The monarch’s obligations

The starting point for Svarez’ thoughts about power and law is the social contract which he sees as the foundation of the state – a view that was widely shared among his contemporaries. According to him, the regent installed by the social contract has the task of governing his subjects according to the law and for the purpose of the state (Staatszweck).2 The subjects in turn pledge to obey their regent in accordance with the law.3 Since the actions of the regent are informed by the purpose of the state the idea of the social contract – as seen by Svarez – blends in with the Enlightened Absolutism of the 18^th century.4 |

Svarez was convinced that the main purpose of the state derives from the juxtaposition of civil society on one hand and the deficits of the state of nature on the other hand. In his opinion, the state is, on one hand, meant to protect each of its members against any violent attack on their person and property perpetrated by a third party, and, on the other hand, to promote collective happiness.5 state’s primary purpose being to guarantee safety and peace.6 promote the happiness of fellow citizens as the underlying principle of the extended purpose he sees for the state. He rather deduces that purpose directly from the social contract.7

In his Crown Prince Lectures, Svarez asserts that no form of government has as many visible advantages as monarchy.8 advocate of absolute monarchy and a definite opponent to any form of constitutional arrangement.9 stressed that Svarez’ positive opinion on absolute monarchy basically stems from a comparison of this form of government with other possibilities. It is hence possible that Svarez did indeed hold a certain degree of mistrust against absolute monarchy despite the fact that he witnessed the historic experience of the Enlightened Absolutism of Frederick the Great.10

Consistent with the political theory of natural law, however, the fact that in absolute monarchy the state authority resides solely with the monarch does not lead Svarez to the conclusion that the monarch may act completely without bounds.11 power in terms of including representatives of the people, the estates of the country or any other authority in the government,12 mentioned above, he shall, for instance, pursue the purpose of the state,13 and hence his action shall always be aimed at increasing general welfare.14 Apart from that, the monarch’s power shall always be subject to the law15 – this principle was later enshrined in § 22 of the ALR.

According to Svarez’ concept, the rule of law has many different implications. For example, it entails the prohibition of retroactivity so that legal rules must not be applied to cases that took place before the respective rule was established.16 Even Svarez’ remarks on so-called Machtsprüche (›dictums‹) can, to a certain extent, be deduced from the principle of the rule of law.17 A Machtspruch consisted of an authoritative decision by the monarch through which he could intervene in on-going judicial proceedings in civil law matters either by giving a ruling himself or by instructing the court to come to a certain decision.18 The term Machtspruch was used as of the end of the 17^th century, however, its first component Macht (›power‹) did not refer to any violent act but merely to the claim of exerting sovereign power.19 Svarez holds that Machtsprüche must not be binding.20 liberties.21 A Machtspruch issued by the monarch would endanger those liberties since such a decision could well be wrong in substance. Svarez argues that a monarch can neither be expected nor required to know the details of every single legal rule, and that in addition to that, the monarch would be prevented from fully fulfilling his task as governor if he were required to intervene in the civil justice system.22 |

II. No legal obligation on the monarch

The fact that, according to Svarez, the regent is subject to a number of obligations does not necessarily indicate what normative effect such bounds could have. In his works, Svarez repeatedly creates the impression that no earthly authority could implement the monarch’s obligations. Such an authority is certainly not meant to be a single judge – Svarez deems a judge competent to judge over the regent only in certain areas such as fiscal matters.23 the implementation of the monarch’s obligations, according to Svarez, and they certainly do not have the right to resist against acts by which the monarch violates his obligations.24 denial of any binding nature to acts through which the monarch violates the obligations that derive from natural law – such as Machtsprüche.25 Svarez does at no point mention resistance as a valid consequence. The fact that certain acts at the hands of the monarch may not be binding does not entail the subjects’ right to resist against that act. Hence, the regent is subject to certain obligations, a violation of which does not necessarily lead to any sanction.26 Svarez’ views on Machtsprüche can be referred to once more in order to illustrate the separation between the non-binding nature of certain acts and the (lack of a) right to resist by the subjects. On one hand, the reformist stressed that Machtsprüche shall not be legally binding27 to the proceedings who is affected by the Machtspruch are under the obligation to carry it out.28 subjects’ duty to obey their regent shows a striking similarity with Christian Wolff’s ideas.29

For Svarez, the prohibition of resistance is a consequence of the social contract, according to which, in his view, the right to decide whether a certain law is suitable and applicable resides solely with the legislative authority. The subjects in turn have no right to express their subjective view on the validity of a legal rule by refusing to obey the monarch.30 long as in doing so they do not compromise the peace and order of the state.31 violations of natural law on the part of the regent, the only such authority must be the regent’s common sense.32 what distinguishes Enlightened Absolute Monarchy from despotism.33 and hence it is interesting to consider how he intended to compensate for the fact that the monarch’s obligations under natural law were not enforceable. This shall be done in the following section.

III. Compensation for the lack of legal obligation

Svarez was aware of the fact that the monarch’s common sense was a feeble guarantee.34 reasonably. For instance, his work contains numerous hints directed at the regent warning him to apply his common sense for the sake of the political survival of his dynasty in power.35 For although Svarez rejected the idea of the subjects’ right to resist against acts of royal power, he was well-aware of the actual possibility of |single acts of resistance or even a collective revolution.36 III. in order to convince him of the necessity of observing the bounds set to the ruling authority by natural law. It must be stressed though that Svarez merely describes the possibilities of resistance and revolution – he does not deem them legally acceptable nor does he advocate them in any way.

The hints at possible resistance and revolution must have impressed the later King Frederick William III, but he was possibly even more impressed by his teacher’s references to posterity forming its own judgement about former monarchs.37 cases at the time in Prussia where decisions made by a former monarch were revised by his successor on the Prussian throne. In 1786, for instance, Frederick William II. gave order to rehabilitate several high-ranking judges who had been punished by Frederick the Great for an alleged false judgement.38 predecessor personally of an incorrect decision – the nephew of Frederick the Great did not call the admissibility of the decision made by his uncle into question but rather claimed that the decision had been based on incorrect reports and thus brought about surreptitiously.39 certain regent did not necessarily persist in the eyes of posterity. It was the function of posterity as a judge of former monarchs that Svarez used as a means of warning during the Crown Prince Lectures.

However, Svarez’ educational approach was not limited to his personal influence on the future monarch during the Crown Prince Lectures. His efforts are also visible in that he advocated the idea of third persons acting as advisors to the monarch. Although it is true that Svarez was against any model in which third persons would be granted direct political participation in the monarch’s exercise of power on one hand, he did on the other hand wish to give third persons the opportunity of assisting the monarch by offering him advice on his work. For example, this is true for the Prussian estates of the country and the Gesetzkommission (›law commission‹), the working group in charge of elaborating a new code of laws. In Svarez’ view, none of these institutions were meant to obtain the right to participate directly in the Prussian legislative process40 importance of the estates of the country and the Gesetzkommission as an advisory body to the monarch.41

Svarez also believed that the subjects as a whole should fulfil an advisory function. It is true that, just like the estates of the country and the Gesetzkommission, they do not have a documented right to participate in the exertion of power.42 which he believes is not necessarily a top-down process, but should also work in the opposite direction. This explains the reformist’s relatively moderate views on the freedom of press.43 coherent way so as to give the individual subjects the possibility of being informed about the current legal situation.44 theorems were indeed fully implemented in legal reality – especially in the codification of Prussian civil law. The question of the extent to which the reformist’s views about the relation of power and law entered the AGB and the ALR shall be discussed in the following section.

III. Practical implementation of Svarez’ reflections

The question about the extent to which Svarez’ theoretical views were actually implemented cannot be answered without considering the ALR, in whose creation he played a unique and decisive role. Although it is true that Carmer’s staff responsible for the codification of the Prussian laws comprised several people, Svarez was the one who took |the lead.45 He was the one who drafted the first version of the code of laws.46 public in the legislative procedure in his so-called revisio monitorum.47 AGB. Even during the final review Svarez’ contribution was by far the largest.48

The following section shall offer an introduction to the history of the creation of the ALR (section 1). Thereafter, the actual question about the extent to which Svarez was able to implement his ideas on power and law in the context of the judicial reform shall be explored (section 2). Here, a distinction must be made between the concept underlying the AGB (section 2.A) and that which was later adopted in the ALR after the final review which had been ordered by Frederick William II. (section 2.B).

I. The creation of the ALR

There are not many pieces of legislation whose creation was as long a process as that of the ALR.49 subjects’ lives emerged in Prussia as early as the 17^th century.50 would be written in simple language and be void of any type of academic discussion.51 mid 18th century on,52 began increasingly drawing on ancient German sources of law.53 certain deficits of the legal system.54

Efforts to create a new civil legislation as well as to improve Prussian legal proceedings had already been made under Frederick I. and Frederick William I.55 attempts made by their successor Frederick the Great together with the Prussian minister of justice Samuel von Cocceji during the early years of the former’s reign.56 von Jariges and Carl Joseph Maximilian von Fürst und Kupferberg, hardly made any effort to revisit Cocceji’s reformist ideas. During the Seven Years War from 1756 to 1763, which constituted an existential danger to the Prussian state, such attempts would most likely have failed in any case.57

Reform efforts were only resumed in 1780.58 march of the Prussian judiciary, so that the mistrust he had always held in the legal profession turned into outright dissatisfaction.59 judiciary: A case that entered German legal history as the so-called Müller-Arnold-Prozess.60 monarch accused the respective judges of having handed down a false judgement – wrongly as it later turned out – to the detriment of a miller and in favour of a nobleman. Frederick II. saw this case as a confirmation of his mistrust of the Prussian judicial system and in late 1779 ordered the dismissal and incarceration of several high-ranking judges as well as the removal of the minister of justice Fürst und Kupferberg61 who was according to him responsible for the state of the system.62 of justice.63 voiced several ideas for reforming legal proceedings during the preceding years, and on the other hand he was no longer needed in his previous position as Silesian minister of justice since he had already succeeded in regulating legal |matters in that province so that his talent for organising and legislating could now be put to use for the whole state of Prussia.64

After appointing him, Frederick immediately instructed Carmer to correct the deficits of the legal system. He did not, however, at the time envisage a reform of procedural and substantive law.65 namely the introduction of new criteria for the appointment of judges and the approval of advocates.66 personal failure on the side of the judiciary staff rather than to any deficit of the underlying laws.67 In the end, it was Carmer who initiated the codification, not the king.68 beginning.69 procedural and substantive law was necessary.70 implementing a general reform of the legal system.71

The first step of the new minister of justice’s legislative work was the reform of civil law proceedings.72 1780 included plans to create codes of provincial law as well as a general code of law for the Prussian states. The latter was to be a subsidiary to the codes of provincial law and hence to be applied only in cases of loopholes in those codes.73 states without altogether eliminating state and provincial legislations.74 that they were also meant to satisfy the needs of non-jurists in search of legal protection:⁷⁵ First of all, the laws were to be written in German and free of any artificial Latin terms, making it easier for the subjects to understand them; secondly, the new simplified language as well as enhanced completeness of the legal rules was meant to diminish the number of disputes and legal proceedings as a whole.76 revise existing laws.77 the hitherto existing legal rules, which stemmed mainly from the roman tradition, measuring them against the standards of natural law and adapting them to the characteristics of society at the time.78

Svarez, who had accompanied Carmer to Berlin as a member of his staff, co-authored the first draft of the codification of Prussian civil law,79 which was published during the period from 1784 to 1788.80 Meanwhile, the Prussian and German educated public were also involved in the legislative process (external experts were asked for advice and an academic contest was held).81 1786).82 staff against any possible rejection of their plans.83 their position was less than certain. Carmer and Svarez had enjoyed the late king’s trust since Frederick II. had been fully convinced of the philosophy of Enlightenment and the need to |transfer those ideas into legal reality. Frederick William II. can instead be characterised as a monarch who was far less enthusiastic about Enlightenment.84

At first, however, the process of codification continued. Starting in the summer of 1787, Carmer’s staff began evaluating the results of the public’s participation.85 Svarez delivered his opinion on the reports handed in in his so-called revisio monitorum.⁸⁶ On the basis of that work, the draft was revised until the spring of 1791.87 The revised work was called »Allgemeines Gesetzbuch für die Preußischen Staaten« and was published after having been patented on 20 March 1791.88 It was planned to enter into force on 1 June 1792,89 Frederick William II. imposed the suspension of the code.90 minister of justice Albrecht Leopold, Carmer’s successor in Breslau.91 On 9 April 1792, Danckelmann had submitted a promemoria advising the king to suspend the code for an indeterminate period of time, arguing mainly that the Prussian general public had not had sufficient time to become acquainted with its content.92

At the time, the suspension by the king was possibly interpreted as the definite failure of the whole project that had brought about the AGB,93 definitely abrogate the code of laws. The fact that the suspension ordered by Frederick William II. was not limited to a certain period of time only suggests that he was unable to estimate the amount of time it would take to communicate the new laws as well as to apply certain corrective changes to the code which had even been proposed by the Silesian minister of justice. Moreover, it is important to consider the fact that in the spring of 1792 the king was faced with more urgent problems than putting the code into force:94 a war which actually broke out only a few days after the cabinet order of 18 April 1792 was issued.95 Prussian judicial system was not a priority in the spring of 1792, which is why he did not object to the idea of postponing the entering into force of the AGB. There is certainly no evidence that the king’s aim was to undermine the project of codification as a whole. Nor are there any grounds for the assumption that Frederick William II. might have been acting under the influence of other political forces (such as his companions Johann Rudolf von Bischoffwerder or Johann Christoph Wöllner for example).96

The reformists reacted immediately to the order of suspension,97 but at first Frederick William II. insisted on his decision.98 due to the second polish partition, which was agreed between Prussia, Austria and Russia in January 1793.99 The partition of Poland entailed an expansion of the Prussian dominion,100 Prussian judges and civil servants were to apply in the newly annexed province of Southern Prussia.101 saw a fresh opportunity to advocate for the application of their work in the whole of Prussia. After a long period of discus|sion,102 assigning Carmer with the task of applying certain modifications to the code of law and finding a new title for it.103 into force in the whole of Prussia.104 After the final review, which was mainly carried out by Svarez,105 February 1794 with the title »Allgemeines Landrecht für die Preußischen Staaten«.106 on 1 June 1794.107

With its 19,000 articles this piece of legislation is one of the most extensive codes of law of modern history.108 circumstance that might become a matter of criminal proceedings in any Prussian court or of a legal dispute between subjects.109 set of laws. Instead, it covered the fields of mercantile law, company and labour law, inheritance and family law, municipal, industrial and building law, civil service law, feudal law, canon law, and criminal law.

II. The concepts of power and law in the Prussian code of laws

I. The concept of the AGB

The term »Gesetzbuch« (›code of law‹) contained in the title of the AGB already suggests that what was to be applied was not the law in its definition as the sum of all existing legal norms, but rather the single laws, i.e. the legal rules representing the formalised will of the state.110 law111 ultimate abrogation of customary law.112 the introduction to the AGB with regard to the rights and duties of the citizens of the state, reference is made only to the rules stated in the AGB or in special codes of law. Moreover, the room for interpretation offered to judges and academics was to be reduced.113 authorised to determine its applicability was to be the Prussian Gesetzkommission (§§ 50, 51 of the introduction to the AGB).114

Thus, the concept underlying the AGB included the rejection of traditional law as it had been in force in the Prussian states up to that date as well as an opposition to the authority of the judiciary to interpret the rules in different ways. This conclusion raises the question of whether the AGB did indeed impose certain limits to the monarch himself, for in order to regulate the lives of the subjects there might well have been a need to codify certain rules that regarded the monarch as well. That was the case with § 6 of the introduction to the AGB for example,115 of Machtsprüche spoken by the monarch, and was deleted during the final review. More precisely, it stipulated that no rights and no duties arose from Machtsprüche that were spoken during an on-going legal proceeding. The rule explicitly referred only to civil law proceedings and hence did not apply to criminal or disciplinary proceedings.116 |

Declaring Machtsprüche to be of non-binding nature as § 6 did was a programmatic act against such interventions in on-going legal disputes by the monarch. However, the provision does not equal a prohibition of Machtsprüche.117 involved in a legal proceeding to obey any Machtspruch, as laid down in the Crown Prince Lectures, must be referred to. Here, the reformist states clearly that the respective judge or party to the proceedings shall have no right to defy the Machtspruch.118 the AGB, which can be deduced from the fact that the introduction to the AGB does not comprise any provision to be applied in the case of a Machtspruch being spoken by the king in violation of § 6.

There is thus evidence that § 6 of the introduction to the AGB was not meant to represent a departure from Svarez’ theoretical concept according to which the court was under the obligation of obeying the king’s Machtspruch. The court did, however, have the possibility of submitting a motion of reconsideration and hence suggesting to the monarch to annul his Machtspruch. If the monarch did not decide to do so, the Machtspruch remained binding.119 throne to be passed on to the monarch’s successor and to resubmit their motion of reconsideration to the new king.120 introduction to the AGB.121 It seems as if the provision was meant to advise the litigant against submitting a petition to the monarch in the first place. Machtsprüche were undesirable but not ultimately forbidden.122 voluntary renunciation of Machtsprüche on the king’s behalf. From this perspective, the provision is certainly in line with Frederick II.’s views expressed in his political testaments written in 1752 and 1768.123

The same holds true for § 12 and § 79 of the introduction to the AGB respectively, both of which were deleted from the code during the final review, just as § 6.124 § 12 stipulated that the Gesetzkommission was to participate in the legislative process, and § 79 laid down that all laws had to contribute to the purpose of the state. Just as from § 6, no legal obligation for the king arose from § 12 and § 79. Ultimately, all AGB provisions that might have limited the king’s authority merely suggest possible limitations on political or moral grounds. § 6, § 12 and § 79 could only be enforced by the monarch himself, since the AGB did not provide for any external and independent institution with the authority to supervise the king to such an extent. As long as the monarch did not pronounce an opinion on the validity of a certain provision, each act of royal authority would suggest that he deemed the respective provision valid. The king’s will still represented the ultimate grounds for the validity of the law. The authority to enact laws remained with the king despite the new code.125 constitution in the post-revolutionary sense.126 Thus, Conrad’s view, according to which § 6, § 12 and § 79 of the introduction to the AGB can be called a catalogue of fundamental rights (»Grundrechtskatalog«),127 easily at any time, did not offer any room for fundamental rights directed against the monarch.128 de|veloped which would subject the monarch to any legal duty. Such rules only became accepted in constitutional monarchy.

At the same time, however, the effect of the public promulgation of political duties must not be underestimated.129 constituted a publicly available document of the self-discipline of monarchical power130 and hence it increased the political pressure to fulfil those duties.131 actions. The provisions reflect the basic principles about right and wrong, which according to Svarez constitute a veritable fortress for the citizens’ civil liberties.132 the current monarch’s actions, from the perspective of the Prussian subjects hope remained that one of his successors would put them into effect.

The provisions that publicly documented the monarch’s self-discipline, however, were not the only aspect of the AGB that functioned as guidelines for the king’s actions. The code also provided for certain institutions to act as advisors to the king in matters of legislation. In his Crown Prince Lectures, for example, Svarez refers to the Gesetzkommission as the unpartisan voice of truth.133 their knowledge and skills not only in drawing up the judicial reform itself, i.e. in compiling the new Prussian code of laws. In addition to that, they were also meant to be given the opportunity to advise the king on any future amendment of the AGB (or of the ALR respectively).134 comparable to that of the Gesetzkommission. Although it is true that in the Crown Prince Lectures Svarez had stressed the advisory function of the estates of the countries towards the king,135 legislature concerning the whole of Prussia even at that time (1792/1793). The AGB merely codified the rights of the estates of the country in that it stipulated their role as local authorities.136 They were not an official advisory body to the king.

As for the role of the subjects, however, the AGB explicitly stressed their consultative function. It is true that they were not meant to participate actively in the exertion of state power.137 unrest by mocking the laws – and a threat of punishment for those who act in violation of this provision (§ 151 of the 20th title of the second part of the AGB).138 either voicing objections to existing legal rules or other royal orders to the king or the leader of a department, or of submitting suggestions for improvement in general (§ 156 of the 20th title of the second part of the AGB). Hence, public participation in assessing and amending the laws was permitted – though certainly to a limited extent – in the name of general welfare. This measure did not, of course, aim at creating a general public discourse. The power of acting as an advisory body was to remain with the public authorities. It must, however, be stressed that the subjects’ opinions were indeed taken into account. This can be seen as a continuation of the tendency that had started with the participation of the public in the legislative process that led to the creation of the AGB in the first place.

It can thus be concluded that the AGB does not reflect any intention of legally binding the monarch to fulfil his duties. All of the legal rules that seem at first sight to legally subject the king to any duty – including §§ 6, 12 and 79 of the introduction to the AGB, which were deleted in the course of the final review – are void of any real legal prohibition against him. The function of those provisions is rather the promulgation of the regent’s political duties. Nevertheless, uncertainty remained from the perspective of the monarch as |to whether the provisions might possibly be misinterpreted by third persons. In this context, the final review, which the three articles mentioned above fell prey to, is of interest, and it shall thus be discussed in the following section.

II. The relevance of the final review

As a result of the final review, which had been ordered by Frederick William II., certain significant changes were applied to the Prussian code of laws distinguishing it from the AGB.139 The most obvious one was the modification of the code’s title (»Allgemeines Landrecht für die Preußischen Staaten«). The deletion of § 6, § 12 and § 79 of the introduction to the AGB was another important result of the final review. Changes were also applied to certain provisions that were not as fundamental, such as those concerning morganatic marriage or inheritance law for poorhouses in cases in which the deceased was unmarried.140 deletion of § 6, § 12 and § 79 of the introduction to the AGB. However, even the elimination of those three provisions of the introduction did not mean that the general legal concept underlying the Prussian code of laws suffered any fundamental change. This is especially true for the ultimate deletion of § 6, the provision according to which the king would renounce to speaking Machtsprüche. It has been explained above that this provision did in no way run counter to Svarez’ theoretical concept, according to which the court was obliged to obey any Machtspruch spoken by the monarch. According to the AGB, royal Machtsprüche would have been undesirable but not forbidden. Hence, Frederick William II. would not have faced any legal impediment to issuing such a dictum.

The same holds true for § 12 and § 79 of the introduction to the AGB,141 have been necessary from a legal perspective. All of these provisions, however, carried the inherent risk of being interpreted in a much too extensive way or of being altogether misinterpreted by third persons applying them at a later point in time. Since the provisions stipulated the prospect of royal acts losing their binding nature as a possible consequence of their violation, they might under certain circumstances have been misinterpreted to the effect that subjects or members of the judiciary were not obliged to obey when the King issued a Machtspruch (§ 6), when a law was drawn up without participation of the Gesetzkommission (§ 12) or when a provision excessively limited the subjects’ rights (§ 79 of the introduction to the AGB). Apart from that, the three provisions bore a certain potential of becoming central to large-scale reform efforts.142 review were probably not the actual content of the affected provisions but rather their possible interpretation by third persons.143

In this respect, the events that took place at the time in other European countries must also be taken into consideration. The outbreak of the French revolution for instance gave a clear picture of what Enlightenment could ultimately lead to.144 significantly. In 1792, the king did indeed receive a number of official letters from certain estates of the country and regional governments reporting unrest among the peasant population. Peasants had allegedly declared that they were under no obligation to provide any services to their landlords that were not required by the AGB.145 Prussian code of laws might well have been suspected of importing revolutionary ideas into Prussian society.146

When Frederick William’s confidants began discussing the final review, there was already a strong indication that the provisions of the AGB which were later deleted could easily have been |interpreted in a much broader sense than within what was originally intended to be their scope of application. The Bavarian civil servant Johann Georg Schlosser – one of Goethe’s brothers-in-law – for instance brought up the painful subject in his paper published in 1789, in which he raised the question of whether the Machtspruch provision of the AGB meant that the party affected had the right to resist in cases in which the king acted in violation of that provision.147 been established above, the answer would have been in the negative, a judge might – just as Schlosser – not have been certain as to how to interpret the respective provision. It was probably due to such examples that the king grew increasingly concerned about the AGB creating incentives for further reforms on a larger scale. Since such a risk was highest with regard to provisions that were given a prominent position within the AGB – namely in the introduction – certain provisions which had a similar content but were not as exposed within the text were kept. For that reason, the Machtspruch provision of § 6 of the introduction to the AGB was deleted while § 10 of the 13th title of the second part of the AGB/ALR was kept. The latter provision stipulates that if a criminal offender is pardoned by the king, that does not mean that the victim of the crime loses their right to compensation under civil law. Apparently, the risk of the members of the judiciary disobeying the king was not deemed as high with regard to this provision as with regard to § 6 of the introduction to the AGB.

It is hence apparent that § 6, § 12 and § 79 were deleted because they contained a certain risk of misinterpretation rather than because of their actual legislative content. This does not, however, justify drawing the conclusion that the final revision did not entail any substantial changes to the legal concept underlying the Prussian code of laws. The fact that the deletion of the provisions mentioned above meant that certain substantial political duties of the monarch were no longer laid down publicly plays a decisive role here. As a result of the final review, the need for the king to justify possible violations of those duties to the public was reduced significantly.

On the other hand, many of the reformists’ ideas did indeed persist even after the final review. For instance, the revised version of the Prussian code of laws still stipulated the limited room for interpretation of the laws by the judges. Another concept that was left untouched was the role attributed to civil servants and the subjects. Even under the application of the ALR, the Gesetzkommission maintained its role as the institution whose task it was to advise the monarch on issues regarding the legislative process. As far as the Prussian subjects are concerned, Svarez had never aimed at their full participation in the legislative process. He had always insisted in distinguishing between civil and political liberties – he was only interested in achieving the former.148 thought that did not fall prey to the final review.149 or objections to any legal rule (§ 156 of the 20th title of the second part of the ALR). Criticism by the subjects was hence allowed, a fact that certainly had a normative effect, since it could in certain cases mean that the regent was under increased pressure to justify his actions. The right to voice public criticism was certainly not individualised, but it was meant to serve an enlightened exercise of power by the monarch. Furthermore, the fact that Svarez provided for the subjects’ right to voice their objections reflects his fundamental concern with regard to the relation between free people and the state.150 extraordinary legal reformist.

IV. Conclusion

Did Svarez’ ideas prevail then? The answer seems at first sight to be a definite yes. The considerations about the final review not having lead to any fundamental changes of his basic concept in particular seem to confirm the assumption that the |Prussian reformist achieved his ends. However, there are some objections to be made to this view: If one were to believe that the concerns Frederick William II. and his confidants had about §§ 6, 12 and 79 of the introduction to the AGB – which were deleted in the course of the final review – becoming central to further large-scale reform efforts were indeed justified, one cannot rule out the possibility that Prussian history would have taken a different turn if it had not been for the final review.

However, considerations about the hypothetical effects of events in counterfactual history are usually vague and partly even futile. With regard to Svarez, the speculations described above might even be completely erroneous, since they do in no way reflect the reformist’s aims. Svarez was known to be a most dutiful civil servant, loyal not only to his minister of justice, with whom he shared remarkably close bonds all throughout his professional career, but also and especially to the Prussian monarchs. It is hence improbable that he would have designed the Prussian code of laws with the idea in mind of promoting attempts to constitutionalise the Prussian monarchy.

At the same time, however, Svarez’ undeniable dutifulness should not be misinterpreted as meaning that the reformist was altogether opposed to any change in the Prussian political system. His loyalty towards the state and its regent must not be mistaken for an uncritical attitude. As he mentioned in one of the Crown Prince Lectures, Svarez did not shy away from voicing audacious truths (›dreiste Wahrheiten‹)151 audacious truths was certainly the publicly stipulated advice towards the king to renounce to issuing Machtsprüche. Without the final review, the Prussian code of laws would have become a publicly available document of the self-discipline of monarchical power and as such it would have made possible violations by the monarch of the duties he was subject to according to natural law visible to all citizens of the Prussian states. As a consequence of the final review, however, Svarez was denied the opportunity of influencing the monarch’s exertion of power. Nevertheless, a number of his efforts to point out the path of natural law to the king were indeed successful. All in all, it may be true that Svarez’ work did not exactly make him the one to bring about a new era in Prussian legal history – his great achievement, however, lies in his systematic attempt of bringing about enlightened limitations to what was at that time illimitable.