donderdag, januari 30, 2014

ARTICLE: "Jülich and Berg between Imperial and Public International Law" (Beiträge zur Rechtsgeschichte Österreichs: recht [durch] setzen: Making Things Legal. Gesetzgebung und prozessuale Wirklichkeit in den europäischen Rechtstraditionen, Hrsg. von K. STAUDIGL-CHIECHOWICZ, Ph. KLAUSBERGER, R. PILS, P. SCHEIBELREITER & C. SCHMETTERER. III (2013), Nr. 2 [Acta of the 2012 European Forum of Young Legal Historians], pp. 355-362. (ISSN 2221-8890)

The Austrian Academy of Sciences just published the Acta of the 2012 European Forum of Young Legal Historians (Vienna) as the second issue of the Beiträge zur Rechtsgeschichte Österreichs third volume (2013/2). Among many 34 papers, one of mine (pp. 355-362), containing some reflections on the legal interpretative framework concerning the famous Jülich/Berg question, a dispute opposing the Electors of Brandenburg, Saxony and the Palatinate. In this text, a shorter version of my intervention in 2012, I argue that an outsider-approach on issues within the Holy Roman Empire has not only political consequences, but also impacts the legal terms in which the dispute is framed.

Charles VI. famously promised Prussian King Frederick William I. the succession of the duchies of Jülich and Berg in 1726, but did not keep this treaty pledge. Frederick II. did not think high of public international law, but used this as a political motive for revenge on Austria in November 1740, starting the War of the Austrian Succession. Although the Emperor benefitted from an advantageous position in Imperial law, which was essentially feudal for successions, his decisions in the 1720s were always the counterpart of a bilaterally negotiated concession by the other party, triggered by European, rather than German politics. In the light of the Utrecht and Italian examples, it can be argued that the power relations at the inter-sovereign level and the resulting political compromise created an implicit hierarchy, where vertical Imperial law was bowed and bent to fit the main players’ horizontal options.

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