Publicus–Privatus The Divine Foundations of Authority in Dietrich Reinking

1 Gießen–Marburg–Glückstadt

After the death of Elector August I of Saxony (1526–1586), the empire and its political structure began to change. August was the last living ruler, who had taken active part in drafting the Peace of Augsburg (1555), and with his demise the ambition to keep the peace seems also to have perished.^[10] Of course, there is no straightforward answer as to why political collaboration stopped functioning. This breakdown culminated with the outbreak of the most violent wars that Europe had until then witnessed, but the Thirty Years’ War (1618–1648) was not just an issue of internal conflicts: international interests played a decisive role, while the religious attitudes of Emperor Rudolf II (r. 1576–1608) constitute another piece to the puzzle. Without overestimating their impact, we might also refer to different processes of confessionalization that intensified during the last decades of the sixteenth century and pitted religious camps against each other.^[11] Disputes over imperial law became increasingly difficult to resolve, and legal institutions became lame ducks; no business could be concluded at the Imperial Diet of 1608. This impasse informed the founding of the Protestant Union (May 1608) and the Catholic League (July 1609), but it also demonstrates how conflicts over the common good could no longer be deliberated: the frame for the public order of things had come off its hinges. Famously, the jurist Joachim Stephani (1544–1623) encapsulated this situation with the formula cuius regio, eius religio (whose realm, his religion). The clarity of this dictum should not cloud the fact that during the early seventeenth century, the stability of the empire became increasingly difficult to maintain.^[12] As an attempt to stabilize matters in theory, a new academic discipline emerged; the jus publicum.^[13] In Jena, Dominicus Arumaeus (1579–1637) pioneered this scholarly pursuit. Before Arumaeus, Georg von Obrecht (1547–1612) had lectured on the topic in Strasbourg, while Arnold Clapmarius (1574–1604) wrote a Disputatio de iure publico (1602) and became the first professor of public law.^[14] Clapmarius had studied in Helmstedt, where Henning Arnisaeus (c. 1575–1636) would later develop a theory of the political sphere based on a Lutheran brand of Aristotelianism.^[15] In these intellectual environments, the foundations of political authority became a topic of heated debate. One example of such theoretical debates and their confessional underpinnings is the conflict between the universities of Marburg and Gießen, which is central to Reinking’s intellectual itinerary.^[16]

In 1527, the University of Marburg was founded as a Lutheran institution. After the death of its founder the childless Count Ludwig IV of Hessen-Marburg (1537–1604), the university was submitted to the Reformed confession, and this despite Ludwig IV’s explicit wish stated in his will. Indeed, one of Ludwig IV’s successors, his nephew Count Moritz of Hessen-Kassel (1572–1632), deployed the principle later codified by Stephani: since Moritz had personally adopted the Reformed confession, a university situated in his lands had to follow suit. Officially, the transformation from Lutheranism to Calvinism was accomplished in 1605; two years later, in 1607, Count Ludwig V of Hesse-Darmstadt (1577–1626) founded the University of Gießen in direct response. This Lutheran institution was to secure confessional survival within the relatively young landgraviate. Several Lutheran theologians and jurists also decided to leave Marburg and pursue a career at the new, neighbouring institution. One of these men was the theologian Balthasar Mentzer the Elder (1565–1627), who had authored a series of anti-Calvinistic works. The Marburg professor of law Gottfried Anton (1571–1618) also decided to leave. Relocated to Gießen, Anton and his students began openly to oppose the teachings of Hermann Vultejus (1555–1634), one of the most prominent legal scholars in the empire.^[17] Vultejus had been affiliated with the University in Marburg since 1580, and since 1591 he served as its first professor of law. He adhered to the humanistic tradition of French jurisprudence, synonymous with the teachings of Jacques Cujas (1522–1590) and characterized by the historical-critical approach to Roman law. Against this approach, Anton and his followers maintained that the Holy Roman Empire was a monarchy, and therefore “princeps legibus solutus est” (the emperor is free from laws) still applied.^[18] In his Commentarius ad titulos codicis, Vultejus had come to exactly the opposite conclusion: “Princeps hodie legibus solutus non est” (today, the emperor is not free from laws).^[19] The temporal adverb “hodie” implies a critical view of Roman law that Lutheran jurists opposed, and these conflicting views should be seen in light of the historical context. Ludwig V, the founder of the University of Gießen, had decided to collaborate with Emperor Rudolf II, and this explains why jurists like Gottfried Anton maintained a positive view of the emperor. Conversely, the Marburg position cut divine authority off at its root, and this stance conferred legitimacy to Moritz’s personal authority: this rested not on its continuity with a sacred past, but on a continual agreement between ruler and people. Clearly, a specific confessional context circumscribes the respective positions of the universities of Gießen and Marburg.

As the early stages of this conflict between Gießen and Marburg were unfolding, the fifteen-year-old Reinking was studying in Lemgo. Around 1610, he became one of the first students to enroll in the Gymnasium illustre that Count Ernst of Schaumburg (1599–1662) had founded in Stadthagen. The following year, the young student accomplished his first disputatio.^[20] Shortly after its publication, Reinking relocated to the Catholic University in Cologne. Next, he had planned to travel to the University of Gießen, but an outbreak of the plague seems to have forced him to change plans. Scholars have presumed that he therefore stayed in Marburg during the winter of 1614 and came into personal contact with Vultejus. Such contact was surely established, but Reinking also participated in a disputation at Gießen that was presided over by professor of law Helfrich Ulrich Hunnius (1583–1636). This 1614-disputation somewhat antedates the relationship between Reinking and the Lutheran institution; the disputation is dedicated not only to Hunnius but also to the anti-Calvinist Mentzer.^[21] In the spring of 1615, Gießen was again safe, and Reinking could permanently settle in the city. Initially, he was employed as a private tutor, and in February 1616 he registered for the licentia. The theme of his disputation – De brachio seculari et ecclesiastico – was decided by Reinking himself,^[22] but his conclusions strongly resembled those of Gottfried Anton. In 1619, Reinking revised and expanded his disputation before publishing it as the Tractatus de regimine seculari et ecclesiastico. A major achievement of early modern jurisprudence, the Tractatus was reissued several times during the seventeenth century,^[23] and scholars debated its formulations intensely. Its influence lasted well into the eighteenth century, when it was published in 10 additional editions.

Shortly before the appearance of the Tractatus that would win Reinking almost instant fame as a legal scholar, he was promoted to professor extraordinarius of law. Ludwig V also made him Anton’s adjunct in the court of appeals; due to the aging professor’s deteriorating health, this political responsibility weighed heavily on Reinking’s shoulders. After Anton’s death in March 1618, his most famous student was awarded a seat on Ludwig’s court council, and the legal scholar was thus catapulted into the arena of politics. Nevertheless, Reinking remained true to his scholarly commitments. In 1617 and 1618 he presided over several disputations, including works by Johannes Wösthoff,^[24] Joachim Peter Thatenhorst,^[25] Bernhard Rheder,^[26] Johann Joachim von Schönbeck,^[27] Wolffgang Pirckhmaer,^[28] Franciscus Hilchen,^[29] Ludolff von Zesterfleth,^[30] and Georg Tobing.^[31]

The 1620s mark a shift in Reinking’s career. While involved in various courtly rulings and negotiations,^[32] he also played a central role in the marburgische Erbfolgestreit. As mentioned above, Ludwig IV had initially ordinated in his testament that the University of Marburg should remain Lutheran, and this called into question Moritz’s submission of the university to Calvinism. On behalf of Ludwig, Reinking argued the case at the Diet of Regensburg in 1622, and during 1623 and 1624 he was sent to the imperial court in Vienna, where he brought Ludwig V’s case to a successful close: the University of Marburg was submitted to Gießen, and it thereby became a Lutheran institution again. In 1625, Ludwig V’s successor, Georg II of Hessen-Darmstadt (1605–1661), appointed Reinking vice-chancellor, and in 1632 he became chancellor in the territory of the Prince-Bishopric of Schwerin, which was part of the Wallenstein’s duchy under Adolf-Frederik I of Mecklenburg (1588–1658).

After negotiating peace for Mecklenburg as part of the Peace of Prague (1635), Reinking suffered personal persecution by the Swedish armies. Thereafter, he found employment at the court of Frederik, Prince-Archbishop of Bremen (1609–1670). Reinking was employed by the son of the Danish King from 1636 and seems quickly to have proved himself useful, although Christian IV (1577–1648) suspected him to be a Swedish spy. In June 1647, Frederik’s older brother, the crown prince of Denmark, died, and eight months later King Christian IV passed: this left Frederik as the closest heir to the throne. After deliberations in the Royal Council, Frederik III was recognized as ruler of Denmark: his coronation took place in November 1648, and in the following years Reinking oversaw the political administration of the king’s possessions in northern Germany. Officially, he was a member of the German Chancellery and appointed chancellor to the city of Glückstadt. In pamphlets, he vehemently defended the Danish cause during the wars against the Swedes (1657–1658) in which the Danes were ultimately defeated, and the nation found itself in almost bankruptcy. This crisis paved the way for Frederik III to implement absolute rule, severing ties with the old nobility and concentrating authority to himself and his family. In this connection, Reinking contributed with an important statute on monarchical succession,^[33] which served as an important part of the Lex Regia (1665) and its codification of Frederik’s absolute rule. During his time as chancellor of Glückstadt, Reinking also authored a famous political-ethical treatise entitled the Biblische Policey and dedicated to Frederik III.^[34]

2 Foundations of Authority

The Tractatus opens by situating the emperor’s potestas within a developmental storyline. Following Aristotle, Reinking identifies three types of governance – monarchy, aristocracy, and democracy – each with a particular type of risk. A monarchy can easily become a tyranny, an aristocracy facilitates oligarchy, and a democracy can turn into pure anarchy.^[35] Reinking remarks that all societies should prefer the kind of governance that gives most credence to the divine will. Accordingly, monarchy with its risk of tyranny is the most appropriate rule: this governance is the preferable medium of potestas.^[36] Reinking further observes that monarchy is the oldest form of governance, and this pre-eminence he corroborates with reference to four kingdoms: the Assyrian kingdom, the Persian kingdom, the Greek kingdom, and the Roman kingdom.^[37] The Hebraist Christoph Helwig (1581–1617), who was professor at the University of Gießen, might have been a direct source of inspiration for Reinking. Helwig published his Synopsis historiae universalis in 1612, and this book engages with Daniel 2 and Daniel 7, where four kingdoms and four beasts are discussed.^[38] More specifically, Reinking refers to theological authorities like Philipp Melanchthon (1497–1560) and Johann Gerhard (1582–1637),^[39] evoking hereby the Lutheran reading of the Book of Daniel,^[40] which states about the Roman kingdom that it translates to the Holy Roman Empire and, as such, this is the last earthly kingdom until the coming of the kingdom of Christ.^[41] We should here remark that the jurist Georg Martin had presided over a series of disputations in Marburg, where Daniel Patterson discussed the Book of Daniel and its interpretation by Jean Calvin (1509–1564), François du Jon (1545–1602), and Amandus Polanus von Polansdorf (1561–1610). Unlike the Lutherans, Calvin and Reformed theologians maintained that the four kingdoms (Daniel 2) and the four beasts (Daniel 7) pertained to events that had taken place long ago and had no direct influence upon current issues.^[42] Within this context, Reinking maintains that the translatio imperii ensures a continuity between the Roman Empire and the Holy Roman Empire. This continuity documents that the emperor holds a position of authority that is superior to the pope’s. Monarchical rule, as a transhistorical reality, constitutes the framework that God favours, and which he therefore has upheld and will continue to uphold until the Day of Judgement.^[43] Thus, the Tractatus defines the emperor as “magistratus” and “caput” of the “summus universi orbis Christiani.”^[44] From this position of superiority, the emperor’s potestas is unrestricted, and Reinking even turns the traditional terminology of canon law against the pope and thereby seeks to limit his authority.^[45] Nobody on earth holds an authority parallel to the emperor’s, and the potestas of princes and other authorities within the imperial estates derives from him. God alone is his superior.^[46] Indeed, princes and other political authorities are provided by God with a set of duties that they have to fulfill in relation to their subjects. Thus, Reinking presents a catalogue of classical virtues that the magistrate should embody and guide his subjects towards.^[47] In this exercise of his divine authority, the magistrate’s potestas extends from the sphere of public into the private life of his subjects.^[48]

From this general picture of potestas follows that not only the just but also the unjust magistrate holds a divine office. Reinking surveys several arguments why injustice would seem to compromise rulers and support the inference that some rulers do not govern by divine mandate. For example, God would not be the originator of a harsh punisher,^[49] or a tyrant cannot meaningfully reign with God’s authority.^[50] Furthermore, God hates those members of society who disturb the peace, and the unfair magistrate causes disturbance.^[51] Crimes cannot be from God, and political rule without justice must constitute a type of infidelity and unfairness.^[52] Against such arguments, Reinking maintains that an unjust magistrate, if lawfully constituted, is divinely ordained and therefore owed obedience.^[53] He argues this point with reference to commonplaces such as Rom 13:1, 1 Peter 2:17, and the reader is also summoned to “Pilate’s court” (Matt 26:57–27:31, Mark 14:53–15:20, Luke 22:54–23:26, John 18:28–19:13), where Pilate, as an unjust magistrate, is vested with authority by God. It is for this reason that Christ appears in his court and allows himself to be judged by an unjust ruler.^[54] These biblical references support that the magistrate, if lawfully constituted, is always from God,^[55] because the worldly kingdom, as a totality, is divinely constituted. Following medieval developments, a transpersonal mode of political authority is explicitly stated: subjects owe allegiance not to the persona, who sits in office but to God, who has instituted the offices as the proper way of exercising authority.^[56]

Now, a ruler might issue a precept that does not directly violate God’s will but simply serves his own ends; he might compromise his office and disregard the common good. Such a precept can be classified as private, and despite its egregious nature it would have to be obeyed. Praising the divine foundation of authority, Reinking remarks:

If the magistrate, however, was to command unjust things that are not explicitly against the laws of God and the laws of nature, but only take private utility into consideration, then it is more preferable to obey than to provide an occasion for rebellion by rejecting other [similar] commands.^[57]

Implicitly, utilitas publica is here opposed to utilitas privata. However, private interest pursued in a particular context might violate positive law, but it does not negate the divine foundation of the public office, and therefore such pursuits do not merit disobedience. Reinking’s opinion here echoes that of the Frankfurt jurist Friedrich Pruckmann (1562–1630), who maintained that subjects must obey the orders of princes, because they are of an inferior condition. As personae privatae, individuals must respect and honour those of higher condition; to neglect this amounts to disobeying God.^[58] Under the guise of a public office, an individual might therefore pursue private financial gain and disregard the common good. This still would not justify disobedience. Conversely, private individuals cannot pursue personal interests: it is a general agreement that kings should be obeyed, and resistance by means of an “auctoritas privata” seeks to erode the execution of laws and the image of God, that is, the divine foundation of authority.^[59] By comparison, the legitimately constituted magistrate can act as a tyrannus without his actions meriting opposition from private individuals. Private members of society must view the tyrant as a just and divine measure, who serves as a scourge, when he unknowingly enacts the divine will by punishing sinners.^[60] Thus, God sent Jeroboam to avenge the sins of Solomon, even though Jeroboam incurred graver sins (1 Kings 1:12–13, 31; 2 Chron 9–10).^[61] Resistance even to the tyrannical magistrate lies beyond the rights of private individuals, because God has not awarded them with the jus gladii (right to the sword). Indeed, these members of society would die if they picked up the sword. To lend weight to this argument, Reinking quotes Georg Von Obrecht, who inferred that it is to private citizens that Christ says: “Put your sword back into its place” (Matt 26:52).^[62] In times of oppression and injustice, the personae privatae have prayers and tears as their only weapons. Privately, humans must bear such burdens, because those who sow in tears shall reap in joy (Psalm 126).^[63] Private is defined in negation to holding public office, and in most circumstances no claims can be made against a figure of divinely ordained authority.

3 Unlimited Authority?

This strong statement on authority and its divine foundations does not entail, however, that private individuals should blindly follow orders. While the privati cannot resist a legitimately constituted persona publica, they should sometimes disobey:

From what has been said in the previous chapter, it appears that even the unjust magistrate is from God and must be obeyed with honour and reverence. What then if he was to command unjust things? It ought not to be obeyed at random. Indeed, and following the advice of the apostles, if he commands something against the laws of God and the laws of nature: we ought to obey God rather than men (Acts 5:29).^[64]

Accordingly, private individuals can disobey a magistrate if, and only if, he opposes God’s will.^[65] Disobedience constitutes the limits of private agency, and tears manifest the interior stance that makes it legitimate: more than a passive manifestation of affects, tears are signs that individuals follow God and are not subject to the whims of worldly rulers.^[66] Affirming the divine foundations of authority, the magistrate, on Reinking’s interpretation, is also not completely legibus solutus. Limitations are imposed upon limitless authority. This is an important point, when we remember that other Lutheran professors of law, like the abovementioned Arnisaeus, viewed the magistrate’s authority as completely unlimited.^[67] Now, the Tractatus confirms that the magistrate is not restricted by civil law, but this unrestricted authority is conferred to a human being. The emperor, princes, and lower officers must therefore view their authority as constrained by divine law and natural law. As we shall see, the distinction between positive and non-positive laws is central to Reinking’s understanding of authority. Indeed, the ruler can disregard precepts set forth in civil law, but some of these precepts are deeply rooted in natural law: these kinds of laws speak to a necessity that all human beings share, although the laws, in themselves, are mutable and require discursive deliberation in particular situations. On a more general level, potestas is however subordinate to the precepts of divine law.^[68] It is by divine will that the magistrate rules and, accordingly, he cannot offer dispensation from this law.^[69] Indeed, rulers have to answer to God regarding their administration of authority: they must understand divine law as transcending all human authority.^[70] This picture of the ruler, central to Lutheranism and its princely mirrors, places a heavy burden on the ruler’s conscience. In Reinking, this aspect is absent: a view inside the ruler’s mind lies beyond his analytical scope and juridical framework. Instead, divine law enters into a close relationship with natural law. Scripture discloses divine law, and, in turn, these precepts are inscribed into the human heart.^[71] Accordingly, natural law, understood as dependent upon divine law, is the source of civil law, and neither prince nor civil authorities can abrogate this law.^[72] Thus, Reinking is attempting to articulate a complex concept, where the magistrate is legibus solutus with regard to the precepts of positive law, but simultaneously committed to the foundations of his authority – divine law – and the foundations of society – natural law.

In this construction of legitimate authority, Reinking follows Hunnius, who had argued in favour of a subtle distinction between power in itself and the legitimate acquisition or usurpation of power. Acts of acquisition and usurpation are often not godsend, but the works of Satan,^[73] leaving room for power, in itself, to originate from the divine even in perverted manifestations. Reinking again affirms that unjust actions do not infringe upon the magistrate’s office and its legitimacy. Instead, injustices should be explained by reference to the perversity of those, who exercise the office.^[74] We can infer that the persona and the officium are distinguishable, and the magistratus can under certain specific circumstances be treated as a persona privata.

In this context, Reinking deploys a vocabulary that medieval authorities such as Thomas Aquinas (1225–1274) and Bartolus da Saxoferrato (1313–1357) had introduced.^[75] Thus, a tyrant can be elected in the absence of a lawful claim or come into power without a legitimate line of succession. These two illegitimate claims to authority allow Reinking to define the tyrant as a mere privatus and as an aggressor: no crimen laesae majestatis follows from resisting him.^[76] This conclusion is consistent with Reinking’s view that political authority is divinely instituted, and therefore all rulers must be elected in a lawful manner: if the magistrate is not lawfully elected, he is not from God. We should take notice that Reinking is not distinguishing the ideal level, where God has ordained political rulership, from the level of political reality, where rulers are constituted through election. As correctly observed by Totzeck,^[77] Reinking’s monarchical theory allows for a difference between the form of state that must always be monarchical, and the type of governance that can take different forms at different times and in different situations.^[78] This distinction is explicitly introduced to counter and to confirm Bodin’s description of the Holy Roman Empire as an aristocracy.^[79] After a long theoretical development, Reinking can thus confirm that the empire follows aristocratic processes, and Bodin’s description is correct in this regard, but these processes do not infringe upon the divinity of the different officia within the empire. Electoral processes are not merely the outcome of deliberations but constituted “ex officii necessitate & jurisjurandi religione.”^[80] With reference to the Golden Bull by Charles IV, Reinking can affirm that the legitimate constitution of the emperor no longer depends upon succession, but upon an electoral process: this process belongs to the fundamental laws of the empire, and, although such laws are mutable and subject to change, Reinking insists that these mutable laws regulate a divine and eternal authority. Thus, the Golden Bull dates to 1356, but its historical nature does not make the officium of the emperor any less divine: election as an agreed upon type of governance does not infringe upon the divine form of state.^[81]

4 Resistance to Authority

Following the medieval terminology, Reinking demonstrates that the tyrannus de titulo can be resisted, because the persona that exercises this type of tyrannical rule is a “mere privata.” Now, he also evokes another kind of tyrant, the tyrannus de exercitio, who has a valid title but wields his legitimate power in a tyrannical manner. Resistance to such magistrates is a complex issue because any subject in comparison to the magistrate is “subditus et privatus simul” or “mere subditus.”^[82] A persona privata cannot revolt against a magistratus, that is, a persona publica, because this, as we have seen, would contradict the divine order of things.

During the first half of the sixteenth century, Lutheran princes had faced the likely risk of being attacked by the emperor and his allies. Initially, Luther was nevertheless reluctant to admit his princely supports with any right of resistance. The emperor was a persona publica, while princes and other territorial authorities, in relation to him, were personae privatae.^[83] However, Philip I (1504–1567), Landgrave of Hessen, convinced Luther that this strong opposition no longer matched the political structure of the Holy Roman Empire. Famously, Luther therefore changed his mind and, in 1530, accepted the opinion of Philip and of his jurists. In this context, Luther again appealed to the distinction between persona privata and persona publica,^[84] and this same distinction informed the further development of resistance theory in Melanchthon, Johannes Bugenhagen (1485–1558), Caspar Cruciger (1504–1548), and other Lutherans. The territorial princes were viewed as personae publicae in relation to the personae privatae who live within their territories, while the same princes, when they face the emperor and promote the causa of their estates, are subjected to the emperor’s authority. However, the adjective privatus could also be attributed to the emperor, when he, as a public authority, exercised unjust aggression; this attribution was based on the right to self-defence posited by natural law.^[85] While the tyrannus de titulo can be resisted, because he is a persona privata, who illegitimately makes claim to authority, resistance to a legitimate ruler, who acts in ways that run opposite to his officium, requires a more profound level of theoretical elaboration.^[86] During Reinking’s lifetime, the Reformed jurist Johannes Althusius (1557–1638) had offered a long list of instances, where resistance could legitimately be exercised. Compared to early modern Lutheranism, resistance seems to have had a more extensive application within early modern Calvinism: in the wake of the Massacre of Saint Bartholomew’s Day (1572), Reformed jurists and theologians expanded this right.^[87] From Martin Bucer (1491–1551), Calvin had already inherited the distinction between ephors and private citizens, and Althusius translated this into legal terms: ephors or estates have a right to resist in the name of the people, who do not themselves hold the right to resistance.^[88] Lutherans like the abovementioned Arnisaeus maintained a much more limited usage, making the right to resistance almost inadmissible.^[89] In several ways, Reinking’s account seems similar to Althusius’s, but it includes certain elements that are foreign to a conventionalist account according to which the ruler’s power, ultimately, is derived from the people.

Like Althusius and Arnisaeus, Reinking’s theory of resistance presupposes a group of individuals within society, who are subjected to the emperor but have access to power: they are involved in public administration and therefore have been awarded with the jus gladii by God.^[90] Here, the abovementioned Georg von Obrecht figures as an authority: he had viewed electoral princes, palatines, and other nobles as representatives of the people, who are permitted to do more than disobey.^[91] Reinking argues that princely authority is an integral part of society, which he elucidates under three headings. First, princely authority is not constrained by civil and positive laws that a predecessor has put in place for utilitas privata.^[92] The prince is, in this situation, legibus solutus. Second, princes and magistrates cannot abrogate the leges fundamentales: they cannot simply change laws that otherwise serve the utilitas publica.^[93] Thirdly, princes are also constrained, to a certain extent, by contracts their predecessors have committed to.^[94] Thus, the prince is legibus solutus within his territory but must honour the fundamental laws of the empire: he is also contractually obligated towards his subjects. Breaking the latter two sources of law – the fundamental laws and contractual obligations – princes would be violating the legal processes that had established them as capita of a given territory. Furthermore, these same processes also guarantee that proceres remain faithful. In sum, the prince is not completely legibus solutus, because specific laws, as a strict chain but also as a vital spirit, constitute the nerve of the res publica.^[95] Together, the constraints imposed by Reinking upon princely authority belong to the ius gentium (law of nations),^[96] which in medieval law and theology resided at the intersection of natural law and civil law, that is, it was both a positive and non-positive type of law.^[97] The force of ius gentium speaks to a necessity that all human beings share, although such laws require discursive elaboration in particular situations. On this basis, Reinking articulates the right to resist an abusive authority. He maintains that the emperor is obligated to honour promises and agreements: like private individuals in everyday societal interactions, public figures of authority cannot break contracts, go back on agreements, and disregard the fundamental laws of the empire. The emperor and princes are legibus soluti regarding positive laws, but certain aspects of these laws, specifically the precepts of ius gentium, are not reducible to their formulations, because these laws are rooted in natural law. Quoting Althusius, Reinking can thus affirm that the proceres can remove a tyrant from his position.^[98] They are not obliged to respect a prince, who does not keep his promises, because this is the salient condition of every promise: like all privati, the representatives of public authority are obligated to keep their promises.^[99] In the De Brachio, Reinking had already argued in a similar fashion. The prince, as subject to the jus gentium, cannot violate precepts by reference to his potestas, because such a violation would contradict the very nature of potestas. By such violations, the prince commits a sin against God’s ordinance and shows himself unworthy of his office.^[100] Reinking further specifies that the potestates inferiores are not only obligated to obey the imperial potestas superior, but also to take care of their subjects in pietas and iustitia (1 Tim 2:2). Indeed, the potestas inferior has also received the power of the sword (Romans 13) and can therefore, under extraordinary circumstances, engage in self-defence (Prov 24:2; Psalm 82:4). This engagement is undertaken when a superior authority acts in a way, where he can be considered as a private individual.^[101]

Here, Reinking’s argument seems close to views presented in the Confessio et apologia Magdeburgensis (1550).^[102] Notwithstanding the defeat of the Schmalkaldic League, the so-called “Magdeburg School” followed Matthias Flacius Illyricus (1520–1575) and opposed Melanchthon’s attempt to formulate a compromise with the emperor. These famous arguments for the right of resistance were authored by, among others, Nicolaus von Amsdorf (1483–1565).^[103] About 60 years later, Arnisaeus explicitly criticized the Magdeburg position, because it could potentially fragment the political order: he attacked these teachings, because they threatened to simplify the relationship between higher and lower magistrates by turning it into a matter of mere convention and situational negotiation.^[104] Instead, Arnisaeus compared the prince to the father of the land: in Roman law,^[105] sons cannot repudiate their fathers, even if they are dishonest; likewise, subjects cannot resist their rulers.^[106] Next, Arnisaeus proposed to view the relationship between the magistrate and his subjects as a marriage contract that cannot be dissolved if the couple are simply unhappy. By extension, the marriage between a prince and his subjects cannot be rescinded if their relationship changes.^[107] By comparison to Althusius, Arnisaeus greatly limits the situations, where lower magistrates can resist public authorities. In other words, Arnisaeus presents a different picture of the contractual obligations between magistrates in lower and in higher offices: these obligations are not simply a matter of convention, agreement, and negotiation, but rather pertain to natural law (the relationship between sons and their father) and divine law (the relation between husband and wife).^[108]

Now, Reinking counters both of Arnisaeus’s arguments. Against his fellow Lutheran, he first evokes a different passage from Roman law, according to which fathers cannot disinherit their children.^[109] If an inferior magistrate can disinherit a prince, it is because the patria is to be preferred over the father: the health of the homeland must be preferred to the authority of the prince. Thus, the homeland has a parental authority that supersedes the authority of fathers in households. Indeed, civil law allows a son to kill his father, if he betrays the homeland, and, by extension, the health of the homeland is preferable to that of the prince.^[110] With regard to Arnisaeus’s argument from marriage, Reinking responds by adding further detail:

As a marriage between spouses can be rescinded not just for any, but for a few and specific reasons that are expressed by divine law and human law (Matt 19:1; 1 Cor 7:14, 39; Codex de repud.[C. 5. 17]), so this marriage between princes and subjects can be dissolved in case of danger to the health of the republic. ^[111]

Just as wicked ways do not abrogate the prince’s royal dignity, not all evil acts committed in a marriage readily prompt its dissolution: the only such acts are adultery, evil desertion, and excessive cruelty. Such acts directly oppose the substance of marriage. By further extension, only acts that destroy the res publica offer just reasons to remove a prince:

Thus, not any evil act of the prince removes his sceptre, but only those acts by which the foundations of the state are overturned. In such a case, the nobles of the kingdom are not resisting an ordinance of God but are caring for it and protecting it from destruction.^[112]

If the magistrate does not keep the fundamental laws of the kingdom, he is overturning society itself, and the nobles are therefore entitled to resist and save the people. As a first step in such resistance, the nobles should impose limitations upon the prince’s freedoms: these impositions must not spring from an ambition to usurp but should be motivated by the noble imperative that society must be defended. If the nobles do not honour the obedience they owe the prince and, illegitimately, resist his divine mandate, the prince will have God as his protector.^[113]

In sum, Reinking positions himself between the Reformed Althusius, who sets forth a long list of instances, where resistance is allowed, and Arnisaeus, who almost denies legitimate reasons for such resistance. We can see him as attempting to formulate a compromise between these extremes. Unlike Arnisaeus, the right of resistance is awarded to members of society, who straddle the divide between a persona privata and a persona publica.^[114] However, Reinking emphasizes that resistance is not, strictly speaking, motivated by the special obligations of certain members of society. What legitimately motivates resistance is the protection of the societal order and not the individuals, who live within it: the latter kind of protection is a byproduct, we might say, of a more fundamental concern, that is, the potential uprooting of the foundations of society itself.

5 Conclusion

Privatus has different valences in Reinking’s Tractatus. In most instances, the adjective seems a residual category, simply defined in negation to the social state of holding a public office. This negative valence is not specific to Reinking, to his Lutheran background, or even to the early modern period. Indeed, Reinking interprets the tyrannus de titulo and the tyrannus de exercitio in classical fashion. In the first case, a persona parades as a persona publica without a legitimate constitution: he is, in fact, a mere persona privata and can be resisted without guilt of laesio majestatis. In the second case, matters to Reinking are more complex, because the tyrannus de exercitio has been legitimately constituted. As noted by Peter von Moos, the topos of tyrannicide constructs the tyrant as a ruler, who pursues private interests and thereby compromises the salus publica.^[115] Reinking can opt for this solution with regard to the illegitimately constituted tyrant, but it does not apply to the legitimately constituted ruler, who acts in a tyrannical way. As a Lutheran jurist, Reinking affirms that the different officia are divinely ordained, and this leaves him at somewhat of an impasse: can a tyrannical ruler be resisted, when he has obtained his office in a legitimate fashion? The proposed answer to this question is telling and maybe a bit surprising, since it comes close not just to the “Magdeburg confession” but also to Althusius’s Politica. However, the discourse on public law was a trans-confessional enterprise, and while Reinking’s picture of authority is Lutheran at its core, he nevertheless combines a multitude of sources and inspirations when attempting to solve specific problems.^[116] More specifically, his theory of resistance rests upon the notion of ius gentium, and it is with reference to this type of precepts that a legitimately constituted magistratus can be resisted: figures of public authority become personae privatae, when they transgress precepts codified in the ius gentium and thereby violate the very foundations of society. Thus, lower magistrates are ascribed with a level of agency regarding the protection of sociability itself. In dealing with the emperor, princes are under normal circumstances subjected to his authority, but these princely members of society, under exceptional circumstances, may oppose the higher magistrate and act towards him as a persona privata.

In more general terms, Reinking’s vision of potestas can be viewed within the context of the Lutheran doctrine of the two kingdoms and its interpretation during the seventeenth century. Here, the offices of public authority and the entire politia are legitimate because God governs the worldly kingdom through them. The ruler’s power is not a matter of convention – it is not derived from the people that he governs – but the offices are divine instruments that have been instituted to repress crimes, protect the weak, and guarantee peace, that is, to combat sin. In this perspective, the persona privata is obligated to obey the authority, and this obedience extends even to situations where the magistrate is unjust, but remains within the realm of divine law and natural law.

In the medieval period, the adjective publicus could be attributed to the pope and to the emperor, while personae privatae referred to their subjects. In Lutheran theology, the church and the clergy were no longer viewed through the same lens as the world and its ruler. In the church, Christ became the only persona publica, and the magistrate had no jurisdiction in matters of the soul: he was himself subjected to the divine will. We might view Reinking’s Tractatus as a step towards redefining the church and the clergy in juridical terms, and his understanding of the magistrate also implies that he is not simply a means to the specific end of repressing human sinfulness: the magistrate is also presented as an ideal of moral behaviour, serving his subjects as a model to imitate. However, his authority is not dependent upon personal attributes: it is the officium and, ultimately, the divine foundation of the officium that makes a persona privata into a persona publica. The legitimacy of ascribing the adjective publica to persona resides neither in the qualities of the individual, who holds an office, nor in the power of the people, who appoints him to an office. It lies beyond the human sphere and constitutes a transpersonal reality. In concluding, we might note that this idea was not novel: medieval authors had long prepared the emergence of the public as a domain separate from interpersonal or private relations.^[117] However, and as we have seen in Reinking’s Tractatus, the Lutheran insistence on the divine function of the magistrate and his extensive powers played an important part in a process of separation, leading to a more firm demarcation of the public and a withdrawal of the private into the sphere of the individual.