Americans and The Federal Principle - Three 17th Century German Theorists of Federalism - Althusius, Hugo and Leibniz

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Three 17th Century German Theorists of Federalism: Althusius, Hugo and Leibniz
Author(s): Patrick Riley
Source: Publius, Vol. 6, No. 3, Americans and the Federal Principle: Some Reconsiderations
(Summer, 1976), pp. 7-41
Published by: Oxford University Press
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Three17thCenturyGerman
ofFederalism:
Theorists
Hugo and Leibniz
Althusius,
PatrickRiley
Universityof Wisconsin-Madison
Influencedby the notions that sovereigntyis (by definition)

"indivisible,"and thatany territorialdivisionof powerwould involve
regression to a "medieval" fragmentation without centralizedau-
thority,political theory in the 16th, 17th and 18th centuries
conceived(or rathermisconceived)federalism in an odd way.1
The rise of centralizednationalstatesin the 16thcenturygaverise
to the doctrineof sovereignty, or the theorythat withina given
polity there ought to be a power internallysupremeand externally
independent.Consequently,the modernstate came to be the touch-
stone of political thinking.Modern states increasinglyabsorbed
medievalnoble and ecclesiasticalprerogative, centralizedpower,and
liberatedthemselvesfromtheinternational influenceof the declining
Papacy and Holy Roman Empire.2 Even as the sovereignstate be-
came the model of acceptablepoliticalanalysis,the steadydeclineof
the Holy Roman Empire left on the imperialbordersthe nearly
independentareasof theNetherlandsand Switzerland,both of which
had enjoyed a great deal of autonomyin the Middle Ages.3 Sur-
1 For a fulleraccount of the way in which federalismwas misconceivedin the early

modern period because of the notion of the "indivisibility"of sovereignty, cf. the author's
article,"The Originsof Federal Theory in InternationalRelationsIdeas," Polity(Fall 1973).
Sections I, II, III and V of the presentpaper are adapted, with revisions,fromthe Polity
article-largelybecause the author thinksthese sections necessaryto a proper"placing" of
Althusius among federal theorists,and because he is unable to writenew sectionswhich
would both serve thispurposeand be betterthanthe old ones. Section IV, whichdeals with
Althusius,is new. (The authoris gratefulto Polityforpermitting reuseof his work.)
2Cf., inter alia, F. H. Hinsley,Sovereignty(New York: Franklin WattsInc., 1966), p.
126.
3JamesBryce,The Holy Roman Empire(London: The MacmillanCo., 1894), pp. 308
and 345.
? PUBLIUS, The Journalof Federalism,The CenterforThe Study of Federalism,Summer1976

8 PatrickRiley
rounded byincreasingly powerful centralizedmonarchies under such

energeticcharacters as Elizabeth,Charles V, and Philip theyfelt
II,
theneedofsomedefensive union, while, astiny"republics," theydid
not wantcentralized monarchy for themselves. They established
treaty-likegovernments, reserving finalpowerto themselves and
merely delegating authority to a central council, which governed
onlythemember statesincorpore, nottheindividual persons making
upthemembers.4
Whenthenature oftheseunionscameto be analyzed inmodern
terms,
political after c. 1575, the doctrine of the sovereign state,
whichrecognized onlystates, and alliancesbetween them based on
theirsovereign "wills"(but no intermediate forms), forced most
to seethesetreaty-like
theorists governments, which weremorethan
alliancesbut less than states(having the form of treaties coupled
withsomegovernmental functions), in terms of thenewideasof
internationalrelations-as merealliances. If theprovinces of the
Netherlands andthecantons of Switzerland wantedto be autono-
mous,thenthey(individually) weresovereign, and,ipsofacto,their
centralunions(foedus)wereagreements betweenthese"sover-
eigns."5"Federalism," then,cameto meanmereinternational rela-
tionsbetween states,andthecharacteristic concepts ofinternational
relations
theory werebrought to bearon federalism. Werestates, as
such,theparties to international dealings? Then states,as corporate
bodies,wouldbe the"parties" to federal arrangements. Werestates
equal,as sovereigns,in international Thenthecomponent
relations?
statesof federal systems would be equal. Were international agree-
mentscompacts founded on thewillof theparties? Thenfederal
governments wouldbe compacts.
If federalsystemswereto be meretreaties, and treatiesmere
thenbreachofcontract
contracts, ofcourseinvolved thebreach of
and
treaty, a breachof treaty the
released remaining partiesfrom
Federalgovernment,
theirobligations. thanksto itsstatusas a con-
wasreduced-by
tract, writers a kindofagreement
likePufendorf-to
4See E. Bonjour, H. S. Offler and G. R. Potter,A Short Historyof Switzerland

(Oxford: ClarendonPress,1952), p. 69; and BernardVlekke,Evolutionof theDutch Nation
(New York: Roy Publishers,Inc., 1945), p. 124. (Among much earlierworks,one should
consult Simmler'sLa Republique des Suisses or De Republica Helvetiorum[n.p. 1578] ;and
Sir WilliamTemple's writingson the Netherlandsin his Works,new ed. (Edinburgh:Jon-
athanSwiftPublishers,1754).
5Otto von Gierke,The Developmentof Political Theory,trans.B. Freyd(New York:
W. W. Norton Co., Inc., 1939), p. 263. (This is an Englishtranslationof Gierke'sJobannes
Althusius,Breslau 1880).

Three 17th CenturyGermanTheoristsof Federalism 9
in privatelaw; it was no longereven a public formof order,and so

became subjectto all thevicissitudesof ordinaryprivateagreements.
The notion that a federalsystemis legallythe effectof a contract
betweensovereignshas createdpermanentproblemsfromwhichthe
modernfederalstate,forall its differencefromthefoedus of old, has
not recovered.The idea that a politycan be foundedin a contract
between sovereignor quasi-sovereign member-states led naturallyto
the idea of secession,to the idea of simplybreakinga disagreeable
contractwheneverany factor pretextof bad faithon the partof any
otherpartyarose. And therewas just enoughof thisidea, reenforced
by historicalknowledgeof the Swissand Netherlandish governments,
and of the Articlesof Confederation,to lend credibilityto thedoc-
trinesof a writersuch as Calhoun,who developedthe idea of federal-
ism-as-contractto heights undreamed of in the 16th and 17th
centuries.6
This contractualism helpedto engenderthe well-known"legalism"
of federalgovernment.As Bryce and Dicey were at pains to point
out, federalism oftenreducesgovernment to adjudication,and action
to arbitrationbetween parties.It fostersincessantargumentsover
jurisdiction.In a federalsystem,insteadof asking,"Whatoughtto be
done?," one is commonlyexhaustedin the secondaryinquiry,"Who
oughtto do it?"' (De Tocquevilleeven urgedthattheonlypolitical
culture which could or would support a federal systemwas one
which was willingto converta great many politicalquestionsinto
legal ones.)8 This, again, is due to the way in which federalism
evolved. The dominanceof sovereignty-thinking, coupled with the
desire to avoid centralizedmonarchy,gave rise to assigningsover-
eigntyto regional"smallrepublics"in federalleagues;but sincethere
could not be two sovereigns in one system,and a centralgovernment
of some sort patentlyexisted, it had to be-if one wanted to be
consistent-analliance whose leadershipexercisedmerelydelegated
powers. And since internationalsystems,includingalliances,were
createdby agreement, federalgovernment became a contract.
The decisivebreak in federaltheoryand practicecame,of course,
in 1787-88 in the United States,when a compromisebetweenthose
6JohnC. Calhoun,Works, ed. Cralle,vol. 1 (NewYork:D. AppletonandCo., 1883),

p. 111.
7A. V. Dicey,Introduction to the Studyof theLaw of theConstitution (London:
The Macmillan Co., 1889), pp. 129-168;and JamesBryce,StudiesinHistory andJurispru-
dence(Oxford:OxfordUniversity Press,1901).
8Alexisde Tocqueville,Democracyin America,trans.HenryReeve,ed. P. Bradley,
vol. 1 (NewYork:A. A. Knopf,1945),pp. 172-73.

10 Patrick
Riley
whowanted a federal government understood,

traditionally a foedus
ofdelegated central power, and those who wanted a national govern-
ment(perhaps a "republicanized" Britishgovernment), produced a
hybrid now known as the "federal state,"which is nothing but a
combination, workedoutarticleby article, of twofundamentally
differentkinds ofgovernment. Themodern principle ofthesovereign
nationalstatetriumphed insofar as thecentral ("federal") govern-
mentwasnowto be a proper statewithlegislative, executive and
judiciaryorgans, whichwouldmake,interpret and enforce itsown
lawsdirectly. Buttheoldideasoftreaty, ofpowermerely delegated,
werepreserved intheideaof"ratification" bystates (analliance idea
whichputthe1787Constitution on thefooting of a contract be-
tween"sovereigns"); intheideaofhaving realstates, similar to the
centralstate,at whatwouldbe the"provincial" levelina unitary
system; in the extreme limitationsplacedon the central government;
in thestructure of theSenateas an assemblage ofthedelegates of
statelegislatures; in thefeature of callingcontending states before
theSupreme Courtas a sortof "international" arbitrator between
"sovereigns," and so forth.This mere compromise between two
historicallydifferent kinds of government an
produced "incomplete
nation"(de Tocqueville)9 whichfinally, butonlyafter a longtime,
cameto be known as a federalstate;while theold federal ideacame
to be known as "confederalism," or"confederal government"-a dis-
tinctionwhichdidnotexistuntilabout1850.10 A compromise was
graduallyconverted intoa principle.
Federalism, then,viewedinthelightofpolitical philosophy, can
mostplausibly be understood as having arisen as an alternative to,
and(moreprecisely) inopposition to,theexistence andthemono-
lithicpowerofthesovereign statesofpost-16th century modernity.
Theoddness ofallfederal theory-its dependence ontheconcept of
sovereignty (as inthedoctrine of"states' rights"orstateautonomy),
despiteitsrealopposition to sovereignty in national statesas pro-
ductiveofsuppression oflocalautonomy-is duetoitshaving seized
on theveryconcept(sovereignty) whichit actually opposed,to
defenditsownposition moresecurely. Thatis,itsoddity is dueto
federalism's having defined theautonomy of itsterritorial unitsin
terms ofsovereignty, whereas infactitwouldhavedonebetter totry
to overturn theideaofsovereignty toutcourt.Allefforts to divide
whatcouldonlybe conceived precisely interms oftotalunity drew
federaltheoryintoconstant paradoxand contradiction. Before
9de Tocqueville,Democracy in America,p. 164.
10Calhoun,Works,p. 163.

German
Three17thCentury Theorists
of Federalism 11
1787, it was mainlyGermanpoliticalthinkers, above all Leibnizand

Ludolph Hugo, who saw this;and it will be usefulto considertheir
criticismof conceivingfederalism in termsof sovereignty laterin this
paper. Their work,most of whichis now translatedintoEnglishfor
the firsttime, providesthe most searchingcriticismof traditional
sovereignty-basedfederaltheorywrittenbeforethe timeof Madison
and Hamilton. (It will be argued here that although Johannes
Althusiusis better-known thaneitherLeib-
as a theoristof federalism
niz or Hugo, the lattercame closerto a modernunderstanding of a
"federal state" than did Althusius-forreasons that will be con-
sideredlater.)
But one cannot know whetherit is reasonableto view federalism
as having arisen in opposition to monolithicpost-16th century
sovereigntyuntilone says somethingabout "sovereignty"itself.Nor
can one know whetherfederalismshould have triedto overturnthe
notion of sovereignty, as incompatiblewithany trueunderstanding
of a territorialdivisionof power, without examiningthe idea of
sovereignpower. Hence that notion must be treated,in however
compresseda form.
II
The actual originof the theoryof sovereigntyis one of the most
complicatedquestionsin the historyof politicalthought,and one
which a studyof federalismcannotpretendto treatcomprehensive-
ly. Beyond doubt, both nationaland international sovereignty were
at leastincipientby theturnof the 14thcentury.The Frenchmonar-
chyhad longclaimeditstemporalindependenceof the Empire,often
"
supportedby the Papacy; and the Papal Bull Unam Sanctumof
Boniface VIII (1302), assertinga universalPapal supremacy,had
been verygenerallydenouncedand rejected.12 In politicalphiloso-
phy,the "rediscovery"of Aristotle'sdoctrinesdid muchto enhance
the prestigeof merelytemporalgovernment, 13 and to weakenthe
older view thatpolitics,as a consequenceof The Fall, oughtto give
way to the HeavenlyCity and its earthlyagents.By about 1300,
then,the conditionsforthe theoryand practiceof sovereignty were
coming into existence.
11See particularlyWalterUllmann'sextremelyhelpful"The Concept of Sovereigntyin

the Middle Ages," EnglishHistoricalReview (January1949): 1.
12Ibid.
13See Walter Ullmann,A Historyof Political Thought: The Middle Ages (London:
PenguinBooks, Inc., 1965), p. 174.

12 PatrickRiley
Thedoctrine(andtheexercise) ofsovereign powercouldbeseen

notonlyas the"recovery" ofantiquity andas an escapefrom the
Papacyand theEmpire,but alsoas a liberationofindividuals,as well
from
as ofwholenations, allthecorporate bodies,withtheir increas-
inglyoutdated and
prerogatives private laws, which had come to
intervene
betweenindividualsandthesupreme political
power inthe
MiddleAges.Due to thedestruction oftheWestern RomanEmpire
andthesubsequent insecurityofeighthundred years, a number of
public
non-political authoritieshad grown up between individuals
andtheshadowy centralauthorities in theMiddleAges,suchthat
anyonewhocouldmanage to pacify andcontrol a sizablepieceof
andwhowouldbothdefend
territory, theinhabitantsofhisterritory
to a higher
andswearfeudalallegiance (becausestronger) authority,
wouldenjoypoliticalcontrol of individuals underhisprotection,
usinghis private
prerogativesand private land-ownership to exert
14
publicauthority. At every level the Church, which had replaced
thedefunct Romanstatein all matters touching publicmorality,
education, of
preservation culture, and indeed reading andwriting
tremendous
exercised
themselves, publicauthority, ofthetwo
as one
"arms" of the Respublica Christiana.s And on top of the secular
and ecclesiasticalhierarchieswithinone countrywerethe "universal"
the
authorities, Emperor and thePope. Whilethe fantasticvarietyof
medieval political forms-feudalmonarchies,elective monarchies,
baronies, duchies, counties, earldoms, marquisates,free cities,
aristocraticrepublics,ecclesiasticalprincipalities, the Empire,the
estates of the Papacy-contributedgreatlyto the fragmentation of
politics in the Middle Ages, all these forms could be
nonetheless
conceivedas partof a vast hierarchy culminating in the Empireand
Papacy as co-heads of Christendom, and all law could be brought
underone of the of
categories St. Thomas' legal structure.6
The doctrineof sovereignty, or supremeinternalpower whose
principalattributewas to be the givingof laws and the receivingof
none [Bodin] " could act as a liberatingagent by destroyingthe
systemof privaterightsactingas publiclaw whichhad characterized
medievalpolitics;the developmentof a theoryof supremepolitical
power (as contrastedwith paternalpower, or theocracy,or power
14
Hinsley,Sovereignty,pp. 62-63.
is
JohnNeville Figgis,"Respublica Christiana,"in Churchesin theModernState (Lon-
don: Longmans,Greenand Co., 1914), pp. 198-99.
16St. Thomas Aquinas, The Political Ideas of St. Thomas Aquinas, ed. D. Bigongiari
(New York: HafnerPublishingCo., 1953), pp. 11-23.
17Hinsley,Sovereignty,p. 122.

Three 17thCenturyGermanTheoristsof Federalism 13
based on land control)was a happy way to get out fromunderthe

various prerogativesof feudal nobles, prelates,guildsand corpora-
tions.To thisone mustadd that afterthe Reformationthedoctrine
of sovereigntybecame particularlyattractiveas a secularrallying-
point forthose who were lookingfora new, non-religious principle
of social unityto end religiouscivilwars.18
These, then,were some of the causes of the gradualtriumphof
internalsovereigntydoctrinesby the 16th century.By that same
time, the doctrineof externalsovereignty was perhapseven more
advanced,the idea of universalauthoritiesno longerbeingplausible
to anyone except Imperialand Papal propagandists.The Reforma-
tion definitivelyended the universalauthorityof the Pope, and also
dealt a cripplingblow to the vestigesof the Emperor'suniversal
authority,to" the extentthat he had seen the secularcounterpart of
the Papacy. By 1550 the Emperorwas too weak even within
Germanyto pass for a universalpower, and the Papacy was hated
and reviledby halfof Europe.
All of these factorswere at work when the great theoristsof
sovereignty,above all Bodin and Hobbes, worked out theirideas
between 1575 and 1650-roughlythe periodof the finalcentraliza-
tion of Englandand France,and the finalweakeningof theuniversal
authorities.Bodin defined the sovereignpower as that which can
"give laws unto all and everyone of its subjects and receivenone
fromthem,"20 a power which would be supreme,not merelyone
among other law-givingpublic authorities.Bodin's sovereignwas to
be above the positivelaw (as its creator),but subjectto divineand
natural law; it was also to respectthe fundamentalconstitutional
laws of the realm,and subjects'propertyrights.
It was, in short,thoughthe highest,indeed the ultimateand final
authority,not absolute in the sense of beingarbitraryor capricious.
Bodin was firstto conceive an "absolute politicalpower" in this
sense;and, thoughhe allowedmedievalcorporatebodies to remainin
his theoryof the state,he reducedthemto dependenceon thesover-
18Ibid., p. 120. Perhapsthe quickestway to get a livelysense of the medievalecclesias-

tical and secular forceswhich sovereigntytheoristsand practitionerswere tryingto under-
mine, is to read Shakespeare'sHenry VI, in which one can see in microcosmthe problems
thatcentralizerssuch as the Tudors faced.
19See particularlyJamesBryce,The Holy Roman Empire,pp. 211-12 and 309-10. This
splendidbook still providesthe most effectiveimpressionof the Empire as a quasi-federal
institution.
20Hinsley,Sovereignty,p. 122.

14 PatrickRiley
eignwill,thus insuringthat privateprerogative would no longerpass

forpubliclaw.
Bodin not only developed the concept of internalsovereignty
withina singlestate; he also denied the existenceof a Respublica
Christiana,declaringthat "since the Roman Emperorswere never
lords of as much as a thirtiethpart of the world,and since the
Empireof Germanydoes not forma tenthpartof the territories of
the Empireof Rome," therewas no universalpoliticalauthority, and
that states were as independentexternallyas they were supreme
internally.21 He further rejectedthe idea that the inheritedRoman
ius gentiumcould be the basisof international relations,and wenton
to formulatea theoryof international dealingsby treaties(contracts)
betweenindependentparties(nationalstates).22
Hobbes, after similarexperiencesof civil war seventy-five years
later,took the doctrinesof internaland externalsovereignty to their
limits.The Hobbesian sovereign,who absorbedby contractall natu-
was an ultimatelaw-giver
ral rightssave self-defense, in the strictest
sense. For in Leviathanneithermoralitynor any kind of law exists
beforeit is willedby a sovereignto whom subjectsare "previously"
(by a contractof obedience) obligated.23 The Hobbesiansovereign,
then, is the creatornot only of positivelaw (for Hobbes the only
true law), but of standardsof rightand wrong,of a civicreligious
doctrine,even in partof opinion,withina singlestate.Moreover,if,
as in Hobbes, moralityas wellas law are createdby the settingup of
a Leviathanwho fillsthisvacuumwithrulesgivenby command-if,
in short,the statecreatesrightand law, and men mustsubmitto it
for their self-preservation-then all justice will exist only within
closed single-statesystems, and the relationsbetweenthese states,
existing in a moral and legal void, will be like the relationsbetween
21Ibid., pp. 179-80.

2Ibid., pp. 180-83.
23Here Oakeshott's versionof Hobbes seems most useful-at the veryleast, it givesan
account of Hobbes whichis consistentwithwhat manyof his contemporariesthoughtabout
his view of sovereignty;but his account is also, in itself,quite persuasive.In view of the vast
and able literatureon Hobbes, it would be nonsenseto say thatthispaper has done anything
more than characterizeHobbes in a way whichmakes his theoryof sovereignty as unique as
possible, and which shows the historicalinfluenceof thattheory.In a studyof Hobbes qua
Hobbes, one would grantthat it is not alwaysclear thatjustice is equivalentto law forhim,
or that "natural duty" has no meaning at all. For presentpurposes, then, see Michael
Oakeshott,"The Moral Life in the Writingsof Thomas Hobbes," in Rationalismin Politics
(London: Methuen Publishers,1962), pp. 266-273; but cf. also Warrender, Taylor et al., as
well as the author's article,"Will and Legitimacyin the Philosophyof Hobbes," in Political
Studies (Oxford: Clarendon Press, December 1973). See also Oakeshott's essay "On the
Character of a Modern European State," in his On Human Conduct (Oxford: Clarendon
Press, 1975).

men beforethe social contract.24 The very creationof a supreme

statethenimpliesthe possibilityof itshostilityto othersimilarstates
if medievalnaturallaw and the Roman ius gentiumare discarded.
And since, forHobbesians,naturallaw and the ius gentiumare not
law unless willed by a "representative person" to whom men are
previouslyobligated, the doctrine of internal which
sovereignty,
places statesin a state of nature while it puts men under true(posi-
tive) law, gives rise by logicalnecessityto externalsovereignty and
transfersthewarof all againstall fromindividualsto states.2s States,
then,beingperfectlyindependent,can be bound only throughtheir
own wills,that is, in the same way thatindividualsare bound to the
state,by contract.If statesare sovereign,thenwill,not the reasona-
bilityof a ius gentiumor a Respublica Christiana,directsthem;if
they are to be limitedat all, it is throughcompactsand treaties
whichtheyvoluntarily imposeupon themselves. 26
At this point modern internationalrelationsbetween sovereign

statesbegin: henceforththe legitimatepoliticalunitis the state,and
relationsbetweenthese statestake the formof treaty-relations. The
theory of internal sovereignty, then, not only did away with the
medievalconceptionof "rational"rule throughlaws whichwere in
conformity to a hierarchyof higherlaws; it enshrinedthe new doc-
trinethat will, not reason, is the foundationof politicalauthority
and obligation,27 that consent,by contract,creates a state and
positive law on the basis of command alone, leaving states in a
premoraland prelegalcondition.From Hobbes on, and includingat
least Spinoza, Rousseau, Kant and Hegel, the state can be limited
only in the way that individualshave limitedthemselvesin forming
states: by consent.And all of thiswas conceivedon thebasis of the
doctrineof the legal equalityof states;all stateswereto be "equal,"
simplyin quality of statehood.28 Indeed, thiswas the only way in
whichinternational relationswere possible,forweakerstateswould
not consentto unequal status,to moreprestigefora powerfulstate
which had the same juridical statustheyhad. If all stateshave the
same juridical status,and if they can be linkedonly throughtheir
wills,then,forinternational relations,onlytheircharacteras possible
of
subjects agreements-nottheirphysicalpower-matters.Afterthe
24Thomas Hobbes, Leviathan ed. M. J.Oakeshott(Oxford: B. Blackwell,1957), p. 83.

25Ibid.
26Ibid., p. 154.
27bid., p. xii (Oakeshott's introduction).
28See P. H. Kooijmans, The Doctrine of the Legal Equality of States (Leyden: A. W.
Sythoff,1964), pp. 66-93.

16 PatrickRiley
17th centurythe theoryof the legal equalityof stateswas a fixed

pointin politicaldoctrine.29
The riseof sovereignty ideas had permanenteffectson European
politicalthought,and above all on the concept of federalism.The
idea of the state as the highestand most comprehensive, indeedas
the only legitimately was
"political"community, finallytriumphant,
slowlydrivingecclesiasticaland privatelaw and prerogativefromthe
field.And thisgaveriseto a progressively vehementanti-medievalism
culminatingin the FrenchRevolution,at whichtimeall the corpo-
rate bodies interveningbetweenthe individualand the state,already
weakenedby the attacksof Hobbes and Rousseau,wereeitherabol-
ished or made "creaturesof positivelaw" (Gierke).30 The process
was properlyat an end when Kant declaredthat the only"natural"
politicalrelationwas thatbetweensingleindividualsand states;3' by
this time the medievalnotionof a societymade up of smallersoci-
etieswas utterlydiscredited.
The elevationof the stateto the only trueformof publicauthor-
ity sharplyreducedthe kindsof acceptablepoliticalorganisms. After
the 17th century,only perfectstates or "systems"of states (alli-
ances, based on will and contract)were admissable.The centraliza-
tion of power which the modernizationof England and France
required-orwhich,at least,Englishand Frenchsovereigns wanted-
seemed to go against local territoriesbeing anythingmore than
provincesin the Roman sense. Possiblepoliticalrelationswere now
reducedto relationsbetweenstates32-and betweenproperlycentral-
ized, and usuallymonarchical,statesat that."Irregular"politieswere
now to be eitherunitarystatesin disguise,or mere"systems,"mere
alliances.By the time that Bodin and Hobbes developedtheirdoc-
trines,Englandand France,whichwere fartheston the road to cen-
tralized internalsupremacyand complete externalindependence,
were the models of the modernstate,the standardof comparison.
But threepolitiesin particularresistedanalysisin the new termsof
sovereignty; these were the Holy Roman Empire,Switzerland,and
the United Provincesof the Netherlands.Withoutthe advantageof
historicalhindsight,16th and 17th centurytheoristscould not be
29Ibid.
30Gierke,Political Theoriesof the Middle Age, trans.Maitland(Boston: Beacon Press,
1959), p. 100.
31Kant,The MetaphysicalElementsofJustice,trans.Ladd (Indianapolis: Bobbs-Merrill
Co., 1965), pp. 97-98. Cf. the author's "Kant as a Theoristof Peace ThroughInternational
Federalism,"WorldAffairs(Fall 1973).
32Gierke,The Developmentof PoliticalTheory,p. 263.

expectedto say thattheNetherlandish and Swissunionsweremerely

parts of the medieval Empire which had been imperfectly absorbed
into the increasingly centralizedstates of France and Austria,and
thattheirpoliticallink,whichwould now be calledfederal,oughtto
have been conceivedin termsotherthan those suitableto a unitary
national state. Nor could theyhave seen thatthe Empireitselfwas
slowlydisintegrating into a quasi-federal league of real stateswhich
could only be distortedby applyingcriteriaof nationalstatehood
and undividedsovereignty.
Whatwas to be expectedin facthappened;the "irregular"systems
of Switzerland,the United Provinces,and the Empirebeganto be
analyzedin termswhichsuitedthe needsof Englandand France,but
whichcould not reallyexplainthenatureof thesethreepolities.And
the distortionwas reenforcedby the veryprovinces,cantons,states
and free cities of the three bodies, who, in theirrush to ascribe
sovereigntyto themselves,preciselyto forestallits ascriptionto a
centralauthority(whetherthe Emperor,or Philip II, or whoever),
virtuallyassuredthatiftheywerethetruestates,thereallysovereign
states,thentheircommonor centralgovernments would be seen as
merealliances.The unitarynatureof sovereignty defiedany idea of a
divisionof supremepower territorially, betweencentraland local
governments; only one could be a real state.Centralgovernments of
federal systemshad to mere councils of allies, assembliesof the
ambassadorsof sovereigns.And here the idea of "federal"govern-
mentwas born. For the Latintermfoedus,which,as was noted,had
meant simplya treatyor an alliance,now came to referas well to
those systemswhichcould not be seen as centralizedunitarystates,
whichobviouslydividedpowerterritorially, but whichcould not be
conceived in termsof power-division, both because of local fearof
centralsovereignty, and because of the insistenceon statehoodand
sovereignty in almost all politicalanalysis."Foederal" government,
governmentby compacts founded on good faith, binding only
throughthe wills of contractingparties,became a formwhichwas
essentiallypartof international relations,thatis, a formof relations
betweenstates,rather than a form of government overpersons.
The simultaneousrise of logicallyinterdependent ideas of internal
and externalsovereignty slowlydestroyedevery subordinate political
structurebelow the level of the state, while at the same time it
toppled every "universal"authorityhigherthan the state, so that
states, and "systems"of states,became the standardto which all
politicshad to conform.As Gierkesaid, "just as againstthe Universal
Churchand againstthe societyof nations,so also in relationto the

18 PatrickRiley
lesserassociations [within single states],theconcept ofsovereignty

wasnowworked out, without exception theory, a sensewhich
in in
all
precluded possibility of a state composed ofstates. Thuswhen-
everfederative structures of 'Unions'existedin theworldoffact,
menthought theyhadonlyto choosebetween theassumptions ofa
league(or relation of Union)among several fullysovereign states,
andtheassumption ofa single articulated state." 33
The interaction oftheideasofsovereignty andstate,withactual

of
systems territorially divided power, forms thehistory of the
theory of federal government. All kinds offederalism-the modern
federalstate,the"medievalist" federalism ofcorporate andregional
(as in
prerogative Montesquieu),34 the international federalism of
European peaceleagues (as in St. Pierre and Kant) 3 -are reactions
to one aspector another of thetriumph of thenational state.All
federalisms, to the extent that theyoppose absolute concentration of
power at the expense of territorialautonomy (and international
organization), aredoctrines ofanti-sovereignty; butatthesametime
thattheyopposesovereignty, theyascribe toitthemselves, andthat
is precisely thesourceof theoddityof federal theory. Federalism
oughtto havebeena puretheory ofanti-sovereignty insofar asthat
doctrine explained and defended the drawing of all power to a cen-
tral(and usuallymonarchical) government at the expense of all
"subordinate" autonomies andall "higher" powers. All federalisms
stoodtogether as alternatives to thenation-state. Buttheydidnot
always see what this involved, and they used the enemy's terminolo-
not
gy, invariably to theiradvantage.
Federalism, then, setoutinthe16thand17thcenturies tomodify
thetriumph of nationalstates,to limitthespreadof centralized
monarchies by making localunitsof federal systems into"states,"
andto limitinternational warbycreating peace-leagues ofEuropean
sovereigns. Federalism in both cases tried to limit sovereignty by
using it in unusual ways,byascribing it to unusual places: the sub-
national level, thesupra-national level.Inanyevent, whatiscertain is
thatthetheory and practice of sovereignty hadan effect on the
conceptof federalism whichonlybeganto be overcome in 1787,
thattheinternal tensions within federal theory, which seemed to
33Ibid.,p. 263.
34Cf. the author's "Montesquieu on Federalism and Democracy," (forthcomingarti-
cle).
35Cf. the author's"The Abbd de St. Pierreand Voltaireon PerpetualPeace in Europe,"
WorldAffairs(Winter1974-75), as well as his articleon Kant mentionedin note 31 (above).

Three17thCentury
German ofFederalism
Theorists 19
allowequallyforrelatively central
strong orforsecession
power, and
dissolution,wereresolvedin the UnitedStatesafter1861 onlyby
facts-thatis,theCivilWar-andnotbytheory. 36
If, however,mostof modern federalthinking after

developed
and
1787, particularly after
about1850 (in the of
work Waitz,
Mill,
Freeman, " andif mostfederal
Dicey,Bryce,andothers), theory
between thetimeof Bodinandthe19thcentury wasdistorted
by
theideasof stateand sovereignty,
itis alsotruethatin 17thcentury
Germany twopolitical LeibnizandLudolph
theorists, Hugo,largely
escapedtheprejudices
of theirage to see federalism
muchmore
nearlyforwhatit was.It is notsurprising
thatperceptive
Germans,
in an Empirecharacterized
living aboveall by territorially
divided
power,shouldconcludethatsomething
wasradicallywrong the
with
wayinwhichfederal governmentwasbeingconceived intheir
time;
is thattheyshouldbe so utterly
whatis surprising when
neglected
federalism
isbecomingsowidespread
a phenomenon. Theirdoctrines
oftheattention
arenowworthy theyhaverarely
received.
III
The originality
of the federaltheoriesof Leibnizand Hugo(and
evenofAlthusius)
canbe appreciated
bestifoneisawareofthekind
viewoffederalism
of rigidBodinian as a "system
ofstates"oralli-
ancewhichwas representedin 17thcentury Germanymainly by
Pufendorf. In hisDe JureNaturaeet Gentium, he insistedthat"the
essentialsof a perfectand regularstaterequirethatin it therebe
sucha unionas makeseverything . . appearto come,as it were,
fromonesoul,"38 andsuggested thatanystateofwhichthiswasnot
36Despitetheefforts of Webster,Marshall,Kent,Storyandothersto weakentheideas

of compact,state-sovereignty and secessionin the 1820s and 1830s, it was only the
SupremeCourtdecisionTexas v. Whbite (1869) whichfirstdeclareddefinitively thatboth
theUnionandthestateswereequally"indissoluble."
37Diceyand Brycehavealreadybeen cited;see also GeorgWaitz,"Das Wesendes
Bundesstaates," in Grundziige der PolitiknebsteinzelnenAusfiibrungen (Kiel: Schwers,
1862), whichwas firstworkto use theterm"federalstate"(Bundesstaat) as distinguished
from"confederation" (Statenbund).(In a "federalstate,"saidWaitzthe"generaltasksof
statelifeare to be fulfilledjointlyby the wholenation,anotherpartseparately by the
individualstocksor divisionsof thenation.... Thedistinctive is thateachpartmust
feature
itselfreallybe a state."Thispassageis citedin RupertEmerson'shighly usefulStateand
Sovereignty in ModernGermany (New Haven:OxfordUniversity Press,1928),p. 95). The
chapteron federalism in JohnStuartMill'sConsiderations on Representative Government
(London:Parker, Son,andBourn,1861),p. 305 shouldalsobe consulted, as shouldEdward
A. Freeman's HistoryofFederalGovernment (London:TheMacmillan Co., 1893)-thefirst
(and last)of a projectedseriesof bookswhich,had it beencompleted, wouldhavebeena
greatmonument offederal scholarship.
38SamuelFreiherr vonPufendorf, De JureNaturaeet Gentium LibriOcto,trans.C. H.
andW.A. Oldfather (Oxford:Clarendon Press,1934),p. 1039.

20 PatrickRiley
truewas "irregular"or (sometimes)"monstrous."A federalsystem,

in his view,was simplyan alliance of regularsovereignstateswhich
reservedall finalauthorityforthemselves. Whateverthepowerof the
central authoritymightbe, Pufendorfurged "it is entirelyfrom
anothersource,and delegatedfromthe confederates, and although
the decreeswhich it issues may bear only its own name,all of their
force and authorityflows from the confederatedstates which
appointedit." 39 A meremajorityof statescan neverrulein a federal
system,he wenton, since all of the statesmustbe equallyindepen-
dent; majoritarianism can take place only"in an irregular
system."40
So autonomousdid Pufendorfmake themembersof federalsystems
that he was forcedto the extremityof sayingthatif a memberof
such a systemmaintained"a perversestubbornness whichrefusesto
listen to reason," and would not accede to the "counsels" of the
majority,it would then"be lawfulto employagainsthimsuchmeans
as those who live in a naturallibertymay use againstviolatorsof
pacts."41 In short,membersof federalsystemswho refuseto go
along with the majoritymust be treatedas livingin a "state of
nature"to be "lawfully"forcedto comply.In Pufendorf, surely,one
findsthereductioad absurdumof "foederal"thought,whichreduces
all authorityof central governmentsto mere advice-giving, and
cannot make a singleone of itsdecisionsstandexceptthroughforce
and violence. In the interestsof "regularity,"sovereignty itselfis
threatened.(Lest it be thoughtthat Pufendorf'sview was uncom-
mon, it is worth pointingout that the article on federalismin
Diderot's Encyclopidie, writtenat the peak of the Enlightenment,
followedPufendorf almostwordforword.)42
As it happened,thetwo importantGermanthinkers who managed
of ordinaryfederaltheory,
to avoid the rigiditiesand irrationalities
Leibniz and Hugo, were in the employof the GermanDuchy (later
Electorate)of Hanover,the formeras librarianand officialhistorian,
the latteras Vice-Chancellor.43 Nonetheless,theirargumentsagainst
traditional"foederal"theorywereratherdifferent, and theydo not
39Ibid., p. 1049.
40Ibid., p. 1050.
41Ibid., p. 1050-51.
42The Encyclopidie's article on "dtats composdes,"writtenby the Chevalierde Jau-
court, followed Pufendorfeven in his suggestionthat recalcitrantmembersof federalsys-
tems be treated as if they were in a state of nature; see the Encyclopddie,vol. 6 (Paris
1761-65), pp. 19-20.
43Among modern writerson federalism,only SiegfriedBrie (Der Bundesstaat, W.
Engelmann,1874), has treatedHugo at all adequately; Leibniz has been even less adequately
treated,though Gierke has interestingpoints to make in his The Developmentof Political
Theory(JohannesAlthusius).

seem to haveinfluencedeach other.Since Hugo was firstto writeon

federalism(1661), in hisonce-famous
De Statu RegionumGermaniae
(On the Status of the Regionsof Germany),it is onlyjust to begin
withhim.
"We note," said Hugo in his introduction,"that our Empireis
governedby a double rule. For the entireEmpireis ruledby com-
mon government, and the individualregionsof whichit consistshave
certainprincesof their own, or magistrates,courts and advisory
bodies, subjoinedto thathigherone." 44 Admittingthat,becauseof
the diversityof the formsof the local Germanpolitiesit was impos-
sible "to say anythinggeneral concerningthem," he nonetheless
thoughthe saw in the regionalstates "the model of the Empire
itself;"the rule of the local princesand citieswas the "descendant"
of the Empirein its earlierdays. He was therefore resolvedto view
"in the rule of the princes... the replicaof thehighestgovernment
of the Empire."45 In a word,boththe Empireand thelocalitieswere
to haveessentiallythe same politicalstatus.
Hugo began his considerationof "the constitutionof the lesser
states in general" by remarkingthat "because vast kingdomsand
empiresembracean area of land considerablein extentand a numer-
ous multitudeof men,it is well asked in what way a greatentityof
this sort can be readiedand disposedto assumesome civilrule."46
He quoted Aristotle'sdictumthat "a numbergreatlyexceedingthe
measurecannotpartakeof order;"thenin medievalfashionobserved
that "in all thingsthat containtoo many subordinateparts to be
moved [immediately]by the commonprinciple... such thingsare
divided into members,and these again into smallerparts,"so that
when "the commonprinciplemovesthe partsnearestit, thesethen
impel the others more remote,and in this way the whole body
partakesof the motion."An empireor kingdom,he wenton, "must
be divided into set parts,"and magistrates establishedin each part
who willcarryout "the commandsof thehighestpower."47
Had Hugo gone on in thisvein he would be as justifiablyobscure
as most of his medievalistcontemporaries.
Turning,however,to the
special case of the he
Empire, began develop an unusualkindof
to
44Ludolph Hugo, Introductionto De Statu RegionumGermaniae(Helmstadt:Sumpti-

bus Hammianis,1708), sect. 1. (The passages cited fromHugo in thispaper were translated
for the author in 1967 by Dr. JohnGleason, then of the HarvardClassicsDepartment.His
versionhas been followed,withsome insignificant changes.)
45
Ibid., sect. II.
46Ibid., ch. 2, sect. I.
47Ibid.

22 PatrickRiley
argumentin which,at firstviewingthelocal Germanpoliticsonlyas

subordinatepartsof the Empire(and partakingof its"motion"), he
graduallycame aroundto the view that theywereat leastlike states
and shareda dividedpower withthe imperialgovernment. "Justas
the municipalityof one city is composed of homes," said Hugo,
temporarily not revealinghis real view of the Empire'sconstitution,
"so a fairlylarge Empire is composed of subordinateregions."In
such an empirethe highestpowerbelongsto the center, and to it
"are subordinatethe lessergovernments." To this pattern,he ob-
served"seem to correspondthe realmsof the noble ordersof our
Empire,whichrealmsare called territories." However,he added,the
individualterritories "by themselves constitute a certainspecialcivil
body, which is nevertheless
situated within the Empire."These terri-
torieswere "part of the Empire,distinctin place, forthe purposeof
being governedby a special civil rule which is subordinateto the
commongovernment.48
At this point Hugo began a progressiverefinement of his argu-
ment."More explanationis needed,"he said, "since thereare various
differencesbetween subordinategovernments."He proceeded to
draw (what were for the time) very carefuldistinctionsbetween
confederalleagues, decentralizedunitarygovernmentsand (what
would not be called) federalgovernments.The confederalleague
existswhen "severalstateshaveinstitutedamongthemselves a union
so close ... that theirassociationexceeds the bounds of the usual
treatyand seems to take on somethingof civilunion." The Achaean
League was, forHugo, the mostperfectexampleof thisform.49 But
here he insistedon the international relationsaspectsof confederal
leagues,arguing, afterGrotius,that "from treatyarisesno civilsub-
jection ... the union contracted by treatydoes not become the
masterof the states,but the states are the mastersof the treaty."
Such a systemhas "the look of a superiorgovernment," but "it is in
fact a different sortof administration-true subordination of govern-
mentsdoes not arise fromit." Hugo assignedthisformto theunions
of the United Provincesand of Switzerland,whichexaggeratedthe
"alliance" characterof thosegovernments. so
If confederalleagues representedone governmental extremefor
Hugo, the other extreme was represented by decentralizedstateslike
the Roman Empire,a formin which"the powerof the magistrates
48Ibid., sects. III and IV.

49Ibid., sect. VI.
50Ibid.

who are in chargeof a city or some regionclearlydepends in all

thingson a kingor a highergovernment." A local administrationof
this kind is "a bit far fromthe form of a state," for just as in
confederalleagues"a truesuperiorgovernment is not to be found,"
so in decentralizedunitarystates "the lowerspecial administration
cannot be considereda state." In the Roman Empire,accordingto
Hugo, "the provincescould not reallyeven seem to be separatecivil
societies," because "the magistratesin chargeof themwerenothing
but the servantsof the Emperor,who throughthemruled theprov-
inceswithwhatwas obviouslya master'sauthority."Sl
Finally Hugo turned to what would today be called a federal

state-thoughit is not to be expected that, in 1661, he had fully
formulatedthisconception,or thathe would use theword"federal,"
a termwhich was bound up withleaguesand alliances.But he did
conceive clearlya territorialdivisionof power betweentwo state-
forms,and thiswas a singularachievementforitsday.
This thirdsort of government, which he called "double govern-
ment," lyingbetween confederalleagues and decentralizedunitary
states, comes about "when the civil power is somehow divided
between the highestand the lowergovernments, so that the higher
managesthose matterspertainingto the commonwelfare,thelower
those thingspertainingto the welfareof the individualregions."52
This strikingly moderndefinitiondoes not avoid some elementsof
sovereignty-thinking-it still uses the concepts of "higher" and
"lower" power-but it is at least concernedwiththe territorial divi-
sion of power,and distinguishes thisclearlyand sharplyfrommere
treaty-relations (despite the exaggerationof assigningthis formto
the Netherlandsand Switzerland).The Empirewas, for Hugo, the
most perfectexample of this "thirdsort" of government; "in such
administrationof a double government-thehigherin the whole
Empire, the lower in the individualregions-we see considerable
justice."s3 He admittedthatthe regionalstates,being"subject" to
the Empire (though not subject as Roman provinceswere subject)
"lack freeand completepower," but insistedthat "theirpower is
stilluniversaland wide enoughto seem to take somethingfromthe
highestpower. It is, therefore,an analogous sort of the highest
power."54 But what was importanthere,despitethe "highness"of
51Ibid., sect. VII.

52Ibid., sect. VIII.
53Ibid.
54Ibid., sect. IX.

24 PatrickRiley
the Empire,was that for the firsttime in federaltheorya local

memberwas considereda state (or a quasi-state)withoutthereby
reducingthe centralgovernment to a merealliance,to a non-state.
Hugo could not get away altogetherfromthe idea of "higher"and
"lower" power;but he could assertthat"since,therefore,thepower
of the [regional] princesand Imperialorders. . . correspondsby
some analogyto the highestcivilpower,it followsthatthe formof
thisgoverningmustby the same token be considereda stategovern-
ment."55
Hugo thenturnedto the properdivisionof functionsbetweenthe
Imperial and princelygovernment,concludingreasonablyenough
that "each can be assignedthe partwhichcan best be administered
by him and whichis includedin his end," and observingonce again
in passingthat while "most kings or highergovernments"do not
allow any autonomyto theirterritorial units,"leavingthe inferior
magistratesonly administrative power dependentupon the permis-
sion of the superior,"the Holy Roman Empire"seems to aim at a
distinctionof higherand lowergovernments." 56 He thenlauncheda
notably modern and non-doctrinaire discussion of the kinds of

authority that each branch of the "double government"ought to
exercise. "The thingsrequiredby the needs of the citizens' life
cannot be seen too properlythrougha universalauthority,"Hugo
noted in a passage that would not have been out of place in an
Americanfederalist pamphlet,"but shouldbe handledby some lesser
civilbodies." And he dividedfunctionsbetweencenterand localities
in some detail,assigningthe punishment of crimesto "the particular
provinces or cities in which they are committed," since they "do
harm to the individualprovinces, not to the whole Empire,"but
leaving war, which "touches the common security the whole
of
Empire," to the Imperialauthorities.Again,treatieswithforeigners
"would seem to belongto the highestpowerof the Empire,"while
"laws and law-suitsbetween privatepersons" concernthe regional
states.In general,said Hugo,mattersthatcan be settledby "general,
standinglaws" should be the provinceof the Empire,whilematters
that "vary" should be handledby the courtsand the particularlaws
of the states.s7 In all of this one can see an effortto distinguish
between "federalrights"and "states' rights"whichis roughlycom-
parableto theeffortsof modernfederaltheoristsin the samearea.
55Ibid.
61Ibid.
57Ibid., sects. XII, XVI and XVll.

Anotherstrikingthingin Hugo is thathe seemsto have actually

approved the territorialdivisionof power in the Empire-unlike
Pufendorf, who thoughtit "monstrous"and "irregular."Hugo often
quoted Aristotleon the excellence of small states, and even felt
constrainedto justifya large-scalecentralpower at all. "Aristotle,"
he observed,"in tryingto describethe formof the ideal city-state,
limits it to a middlingsize ... but ... middlingcitieslack many
things.To remedytheselacks,theymustjoin togetherin some wider
union." Regional autonomy,thougha good thingin Hugo's view,
could, if unlimited,lead to war; moreover,smallstateswereneither
safe in war nor successfulin commerce.It would be possible,he
granted,to obtain the benefitsof largeness"by means of treaties
betweenfreecities." But then,"a treatyis a fragilething. . . it is a
farbetteridea to forma union,itselfthereplicaof a state."58
One should claim neithertoo littlenortoo muchforHugo's inno-
vations in federaltheory.On the one hand,he sketchedwithsome
precisiona "double government," a state bothpartsof whichwould
also be states; and he found a positivevalue in regionalautonomy
without recommending centralgovernmentby treaty-relations. On
the other hand, he could not quite escape the notionsof "higher"
and "lower" government whichsovereignty-thinkinghad engendered;
he could not avoid makinghis thoughtsomewhattransient by tying
it closely to the crumblingEmpire; and he was not very clear
whetherthe state governmentscould be overruledby the Imperial
government.Nonetheless,his achievementin settingthe obsession
withthe location of absoluteand total sovereignpower to one side,
in looking at a territorialpower-divisionper se, was a great ac-
complishmentfor its time, an accomplishment whichmore famous
but also more dogmaticthinkerslike Pufendorfcould not attain.
And in lookingat "double government"as a state-form whose cen-
traland regionalpartswereboth states,he looked forwardto a more
modernfederalism.
Ludolph Hugo, of course,was primarilya statesman,and wrote
relativelylittle;in his contemporary and colleagueLeibniz,common-
ly reckoned the greatest German philosopherbeforeKant,one finds
larger and more wide-ranging views,of whichfederalismis only a
tiny, if significant, corner. With the single exception of Hugo,
Leibniz alone was able to conceiveof federalismas somethingmore
than a simplealliance,because he was not concernedwithexplaining
or justifyingthe modernsovereignstateat all, but ratherwithrestor-
58Ibid., sect. XI.

26 PatrickRiley
ingthe"universal" authorities, theEmpireand a reunited Church-

perhaps in more rational forms, to be sure-to Europeansupremacy.
(This,at least,is trueof hisearlierwritings.) Andsincehe did not
feelobligated to analyzeSwitzerland andtheUnitedProvinces orthe
Empirein termsof sovereignty, he was able to see themas govern-
ments,howeverlimited.Leibniz'argument had twoessential parts:
first,the denialthatevenwithincentralized nationalmonarchies
therewas sucha thingas a supreme power,and second,therelega-
tionoftheconceptofsovereignty itselfto a secondary statusundera
higher kind of the
power, "majesty" of the universal Empire.
Leibnizbeganby removing the characteristic of supremacy from
the idea of sovereignty, this
and by transferring supremacy to the
Empire,leavingsovereignty, now onlya comparative ratherthana
superlative standard, with national kings and with Imperialprinces
and citiesindifferently. "Sovereign," said Leibniz"is he who is
masterofa territory," andwhois "powerful enoughto makehimself
considerable in Europein timeof peace and in timeof war,by
treaties,armsand alliances." 69 He removed thequalityof "highest
power" from sovereigns bydeclaring that "it matters notwhether he
[thesovereign] holds his lands as a fief, nor whether he recognizes
themajestyof a leader,provided thathebe master at homeandthat
he cannotbe disturbed exceptbyarms."60 Thisrestricted definition
of sovereignty allowedLeibnizto put the rulersof theregionsof
Germany on a footing withforeign sovereigns, butonlybecausehe
had reducedsovereignty everywhere to a form of (whattheGermans
called)"territorial superiority."
Forsovereignty as thehighest politicalquality,Leibnizsubstituted
"majesty"(majestas),assigning it exclusively to the Empireand
defining it as "the right to command without beingsubjectto com-
mands"61-a definition muchlike Bodin'sand Hobbes' ideas of
sovereignty. If, however, therewas to be anysovereignty according
to theiruse of theterm,it wasto existforLeibnizas themajesty of
the Empire.Liebniz' reasonsfor transferring supremacy to the
Empireareunderstandable ifone recallsthatone of hismainpoliti-
cal ambitions was the revivalof universal authorities, bothsecular
and ecclesiastical, as the best way of keeping"Christendom" in
order.In viewof thisit is no surprise thathe couldsaythat"sover-
59GottfriedWilhelmLeibniz, Entretiende Pbilarkteet d'Eugtne (1677), in Oeuvresde

Leibniz,ed. A. Foucher de Careil,vol. 6 (Paris: FirminDidot freres,1865), p. 347.
60Ibid.
61
Ibid.

eigntydoes not excludetheobediencethatone owes to the ordersof

a spiritualor temporalleader."62
One way, then,that Leibniz triedto underminethe supremacyof
sovereignty,was by the creation (or ratherthe resuscitation)of
majestasabove it; the otherway was by impugning the accuracyof
(above all) Hobbes' idea of supremepowerin a state,and by narrow-
ing the idea of the stateitself."If we listento Hobbes," said Leibniz
in De SuprematuPrincipumGermaniae,there"will be nothingin our
land [the Empire] but out and out anarchy,"for "no people in
civilized Europe is ruled by the laws that he has proposed."63
Leibniz went on to discuss,quite accurately,Hobbes' idea of the war
of everyman againsteveryman, caused by man'snaturalrightto all
things,and his conceptionof the transfer of his rightsto the state,
such that (in Leibniz' words) "each man is understoodto willwhat-
ever the government or personwhichrepresents hiswills."64 And he
accurately described Hobbes' insistence that governmentmust be
perfectlyunitary and centralized, because (again in Leibniz' words)
"it is fruitlessto dividethe rightsof supremepoweramongseveral
personsor corporations,"since a divisionof power could cause dis-
agreementsand the state might be dissolved.65 Leibniz, having
described Hobbes' ideas, flatly denied their accuracy. "Hobbes'
fallacy,"he said, "lies in this,thathe thinksthat thingswhichcan
entail inconvenienceshould not be borne at all." This insistence,
accordingto Leibniz,is "foreignto the natureof humanaffairs."66
He admittedthat "when the supremepoweris divided,manydissen-
sions can arise; even wars,if everyoneholds stubbornlyto his own
opinion." But experience,he said, shows that "men usuallyhold to
some middleroad, so as not to commiteverything to hazardby their
obstinacy." 67 He found examples of thismoderation in Poland and
in the United Provinces,both of which he evidentlyconsidered
states. "Among the Poles, one territorial representative can dissolve
the assemblyby his obstinacy;in Holland,when somethingof great
62Ibid., p. 351.
63GottfriedWilhelmLeibniz, Caesarini Fiirsteneriide Jure Suprematusac Legationis
PrincipumGermaniae, n. p. 1679, p. 45. (All referencesin this article are to the 1679
edition; but this piece can more easily be found in the modern reprintsof Leibniz in the
editions of the PrussianAcademy, Dutens, and Klopp. On the question of the concept of
sovereigntyin Leibniz' thought,see PatrickRiley, The Political Writings of Leibniz (Cam-
bridge,England: CambridgeUniversity Press,1972), particularlypp. 26-30.
64Ibid.
65Ibid.
66Ibid., pp. 46-47.
67Ibid., p. 47.

28 PatrickRiley
importanceis being considered,as peace, war or treaties,the dis-

agreementof one town [sic] upsetseverything." Still,said Leibniz,
because of the "prudence and moderationof the whole," most
mattersturnout well enough.Politicallife in general,he thought,
was not made possible by "mandatesgivenfromthe plentitudeof
power," but by "negotiationsand discussions."68 "Hobbesian
Empires,"Leibniz concluded,"exist neitheramongcivilizedpeople
nor among barbarians,and I considerthem neitherpossible nor
desirable-unlessthosewho musthavesupremepowerare giftedwith
angelicvirtues."Barringthat,he thoughtthat "men will choose to
keep their own will ... as long as they are not persuadedof the
supremewisdom and capabilityof theirrulers."Hobbes' "demon-
strations,"for him, "have a place only in that statewhose kingis
God, whomalone one can trustin all things."69
Leibniz,then,denied the realityof sovereignty, and so dispensed
with the idea of a highestpower within a polity,and therebywith
those international relationsideas which were the basis of "foederal"
theory;he could therefore narrowthe difference betweenfederaland
non-federalgovernments by denyingthe need of sovereignty. Since
he still conceived of European politics,domestic and foreign,in
medieval termsin which no supremeauthorityexisted anywhere
(save perhapsin the Empire),thedifference betweena federalunion
and a monarchicalstatewas not so great.The "central"governments
of both must"negotiate"withthe local units,be theystates,prov-
inces,cities,the clergy,or whatever.Thoughthisis, in manyways,a
corporativeview of the state,as much feudalas federal,it was pre-
cisely Leibniz' being "out of date" (at least by Frenchand English
standards)which allowed him to reach several conclusionsabout
federalgovernment whichthosewho insistedon undividedsovereign-
ty, even where it did not fit,could not reach.
Several territories,Leibniz thought,could "unite into one body,
with the territorialhegemonyof each preservedintact." This was
because therewas no such thingas absolute centralpower in any
government."We have ready examples of this," he said, "in the
Empire,in the Swiss body, and in the UnitedProvinces"-notdraw-
ing any juridicaldistinctionbetweenthe three.For if,he asserted,
the "individualregions" of these polities have kept the rightsof
maintaining armiesand of makingtreatieswithforeigners, then"it is
68Ibid.
69Ibid., pp. 47-48.

clear that, the union notwithstanding, there still remainsin each

region thatwhich I have definedas sovereignty."
70
"But thereis a greatdifference," said Leibniz,"betweenconfeder-
ation and union"-and here the advantageof his "outdated" attack
on sovereignty is of importance.A confederation, for him,"is en-
teredinto by wordsalone and, if necessary,forcesarejoined;" 71 in
short,it is a merealliance.For a union,however,"it is necessarythat
a certainadministration be formed,withsome powereven over the
members,whichpowerobtainsas a matterof ordinarylaw, in mat-
tersof greatermomentand thosewhichconcernthe publicwelfare.
Here I say there exists a state."72 Unions, then (and he clearly
considered the Empire, Switzerlandand the United Provincesas
"unions") were not mere confederaciesin the sense of beingmere
"systems"in international relations.A "union" requiredsomeessen-
tial state-attributes:"a certainadministration," with"some power,"
which obtains "as a of
matter ordinary law" (that is, not just in
special assembliesof the ambassadorsof sovereigns).Leibnizthought
that "the learnedmen . . . who have treatedthis subject,have ex-
ceeded the bounds in both directions.""Some"-the advocates of
centralizedsovereignty such as Hobbes-"admittingthe unityof the
state, have believedthat libertyor supremacyare abrogatedin the
individualmembers." "Others"-and here is the essentialpoint-
"concedingthe libertyof the individualmembers,havethoughtthat
thereis constitutednot one state,but merelyan alliance."73 But this
was due, for Leibniz, to the insistenceon ascribingsupremepower
eitherto the centeror to the territorial units,when in factsupreme
power did not exist anywhere but in the Imperialmajestas(and even
that power rested on "negotiations," not just "mandates"). Every
polity has more or less of divided power for Leibniz; the difference
between(whatwould now be called) federalstates,and unitaryones,
is only a difference of degreesof local autonomyand centralpower.
Leibniz' weakeningof sovereignty had the greatmeritof allowing
him to see federalgovernment as somethingmore than an alliance,
even though this cost him a "realistic" appraisal of the modern
states-system.
The insightsof Leibniz and of Hugo into the real characterof
federalism,havingbeen made possible mainlyby the factthat the
Empire of theirtime (c. 1650-1700) was in a stateof quasi-federal
70Ibid.,p. 45.
71Ibid.
72Ibid.
Ibid.
73

30 PatrickRiley
equilibriumbetween the rapidlydecliningcentralpower and the

rapidlyrisingpower of regionalstates such as Prussia,Bavariaand
Saxony, were lost when thesenew statesfinallydrainedthe Imperial
In the 18thcentury,one findsno
powerof its last real effectiveness.
theoristof Germanfederalism to comparewithLeibnizor Hugo; one
finds,instead,thingssuch as Moser'sdoctrineof "half-sovereignty"
(!), whichhe used to explainthe statusof the regionsof Germany.74
And it was not to be expected that a Frenchor Englishtheorist
would depart from the doctrineof indivisiblesovereignty, which
continuedto be formidableat least until the timeof Austin. 17th
centuryGermany provided a unique occasion for showingwhat
would happen when one triedto understandfederalismin termsof
sovereignty;but as conditionschanged,so did the plausibilityof
theoriesas subtleas those of Leibnizand Hugo. In 1787, at thetime
of the creation of the federal state in America, the Bodinian-
Pufendorfian view of federalismas a league betweensovereignswas
as widelyaccepted as ever,and theso-called"anti-federalists"in the
United States, who continuedto uphold state sovereignty,could
complain with some justice that "federalists"like Hamilton and
Madisonweretryingto subvertthe truemeaningof federalism. 7s
IV
Though Leibniz and Ludolph Hugo are arguablythe 17thcentury
Germantheoristswho had the most interesting thingsto say about
federalism-largely because they were not obsessed withindivisible
sovereignty, and could countenance what Hobbes or Pufendorf
would have taken for chaos-the reputationof JohannesAlthusius'
Politicsas a precursorof modernfederaltheory(essentiallya reputa-
tion createdby Gierkein hisJohannesAlthusius[1880]) 76 is today
so greatthat one must tread carefullyin findinghow muchfeder-
alism is in fact containedin thatwork.Althusius(1557-1638), who
as syndicof the north-German cityof Emden had a detailedknowl-
edge of both the Imperialand Netherlandishpolities,actuallydedi-
cated the third edition of the Politics (1614) to the estates of
74See JohannJacob Moser, Von Teutschlandund dessen Staatsverfassung (Stuttgart:

Mezler, 1766), p. 551; and Moser, KayserlicbenRegierungsrecbten und Pflicbten(Frank-
furt:Mayn, 1772), sect. 2.
75See MartinDiamond's essay describedin note 114 (below).
76Gierke,JohannesAlthusius,translatedby B. Freyd as The DevelopmentofPolitical
Theory; Cf. also Gierke's Natural Law and the Theoryof Society, trans.E. Barker(Cam-
bridge: UniversityPress, 1950), for scatteredcommentson Althusiusas a federal theorist.

Friesland,77 one of the membersof the UnitedProvinces,and often

cited variousaspects of that federalsystemas examplesin hiswork.
Before,however,one can say just how federalare Althusius'ideas,
one must look brieflyat his whole system,whose relationto medi-
eval constitutionalism,above all to the idea of autonomyat various
levels as well as to the absence of a sovereignrulerat the central
level,explainsmuch of Althusianfederalism(which,in the end, has
much more to do withmedievalistautonomywithina constitutional
structuremodeled on the Empire,than withthe post-1787federal
state).
All associationsof two or more persons,forAlthusius,are politi-
cal, includingthe familyand the collegia (guilds,learnedsocieties,
universities,vocational societies), as well as cities, provinces,and
"universal" associations-realmsand imperia. The only difference
between privateand public political associations,for him, is that
public associationsare more comprehensive; theyare collectionsof
private associations looking to the establishment of a comprehensive
political order (politeuma). 78 All politicalassociations,privateand
public, Althusius characterizes as "symbiotic"(from symbiosis,or
"livingtogether"); thus all political associates,includingassociated
husbandsand wives,are "symbiotes."79 Politicalsocietyis made up,
on this view, of a hierarchyof successivelylargersymbioticassoci-
ations, created both by necessityand by volition(express or tacit
pacts), for the "communication"of things,services,and rights-the
latterbeingprimarilythe strictobservanceof theDecalogue,both in
relationto God (the firsttable of the Decalogue, or piety) and in
relationto associatedsymbiotes(the second table, or justice). Each
symbioticassociation,at whateverlevel,has its own laws, but these
mustalways correspondto the Decalogue and to naturallaw; indeed,
positivelaw is the adjustmentof revealedand naturallaw to particu-
lar circumstances.80
Althusius'hierarchybeginswithprivatepoliticalassociations,the
familyand the collegium,moveson to villagesand towns,whichare
of familiesand collegia,thenon to cities,which
collections-by-pact
are assemblagesof townsand villages,and so on to the provincesand
77Althusius,The Politics of Jobannes Altbusius,trans.FrederickS. Carney (Boston:

Beacon Press,1964), pp. 8-11. Cf. Carl Friedrich'seditionof the uncut Latin textof the 3rd
edition of the Politics (Cambridge,Massachusetts:HarvardUniversityPress,1932), withits
fineintroduction.
7Althusius, Politics,trans.Carney,p. 34.
79Ibid., p. 12.
I80bid.,pp. 13-14 and 67.

32 PatrickRiley
the realm, which are built up by pacts out of the smallerunits.

Accordingto Althusius,individualpersonsare not immediatemem-
bers of the largerassociations;the "members"of the provincesare
cities and towns, the "members"of the realm provincesand free
cities(in themannerof the 17thcenturyGermanEmpire).81
In this comprehensivepolitical order,sovereignty belongsto the
"associated politicalbody . . . to all the members joined togetherand
to the entireassociatedbody of the nation." 82 It emphaticallydoes
not belong to kings,or to any kind rulerat all; rulershipis a
of
merelydelegatedpower,and Althusiusis clearthatsupremepoweris
not necessaryto a rulerin anyway-indeed,thatsuch powerleads to
tyranny.3 Sovereignty, then,has forAlthusiusa meaningthatit has
for few theoristsafter Bodin; Althusiansovereigntyis a kind of
constitutionalism, for it belongs to the processwherebythe hierar-
chy of symbiotic associations is held together.This is no theoryof
"popular sovereignty" in the Rousseauian sense8" (because the
"members"of Althusius'system,who jointlyhold the sovereignty,
are not persons but corporatebodies); but it is a theoryof anti-
monarchicalsovereignty. s
The absence of ruler-sovereignty, however,does not mean that
thereis no highestpoliticalpowerin Althusius;thereis sucha power,
the "universalpower," whichis givento "universaladministrators"
(the Emperor,the kingsof England,Franceand Spain,and so forth)
and which is "preeminent,primaryand supreme"-not, however,
because it is above the law in theHobbesiansense,but supremeonly
"in respectto particularand specialsubordinatepowerthatdepends
upon it, arises and flows from it..." 86 In Althusiusthere is a
balance betweenthe sovereignty of the associated communityand
the ruler'snecessaryauthority,a balance struckby a contractbe-
tween rulersand subjects,the formerpromisingto rule well and to
observethe "fundamentallaws" of therealm,thelatterpromising to
so
obey long as the ruleradheres to his bargain.
Public political associations,for Althusius,are eitherparticular
(cities, provinces) or universal(realms). Among particularassoci-
81Ibid., pp. 35 and 62.

82Ibid., pp. 65 and 68.
I83bid.,pp. 64-65 and 69.
84On Rousseau as a theoristof federalism,cf. the author's"Rousseau as a Theoristof
National and InternationalFederalism,"Publius 3, no. 1 (Spring1973).
85On the relationof federalismto theoriesof sovereignty,cf. the author's"The Origins
of Federal Theory in InternationalRelationsIdeas."
86Althusius,Politics,p. 69.

German
Three17thCentury Theorists
of Federalism 33
ations, citiesaredivided intofourcategories: free,municipal, mixed,

and metropolitan. 87 The freecity"recognizes as its immediate
superior thesupreme magistrate" [Emperor] ; themunicipal cityis
"subjectto a territorial lord;" themixed city"recognizes partly the
Emperor andpartly a dukeorcountas itssuperior;" andthemetrop-
olisis "themother ofcities"(a colony-creating citylikeCarthage or
Athens). AllcitiesinAlthusius areruledbya Senateanda prefect;
theSenate,a "collegium ofwiseandhonest men,"is either elected
byspecial electors (in free or
cities), appointed by territorial
nobles
out of localnominations (inmunicipal andmixedcities), whilethe
prefect is either electedbytheSenate(in freecities)oristheagent
of theproverbial lord(in municipal andmixedcities).City-auton-
omy,however, was characteristic of all citiesforAlthusius, the
Senateandprefect "the of
having power managing executing and the
business of thecommunity andso ofknowing andjudging all that
pertains to the community." Althusius concluded that"whatthe
countis in the province ... or thekingin thekingdom, so this
senatorial collegium for in
is, themostpart, thecity."88
Provinces, in theAlthusian scheme, werelarger territorial
units
governed by counts, dukes, and margraves, who were agents and
of,
appointed by, the universal power-the or
Emperor, national
a king.
The provincial rulerwas to govern together withtheprovincial
"orders," thenobility, theecclesiastical estate,andthe"commons' "
function into and
(divided "agrarians" "burghers") labor and com-
merce. 89 Thesethree orders, whenbrought together ina provincial
assembly, were to meet as
separately,collegia, to decide on matters
in question, thento meetjointly, eachestate-collegium having one
vote at the general session.90 Althusius said that the combined
ordershadmorepowerthantheterritorial ruler, andthathe must
notintimidate them-anindication that, justasmunicipal andmixed
cities,though recognizing a lord,wereto enjoyrelative autonomy,
theprovinces of a realmwereto enjoya similar autonomy despite
the count'sor duke's beingan agentof therealm.91
In these regardsit becomes increasingly
clear thatwhatAlthusius
is getting
at is not"federalism"
inanymodern sense,butcollegial,
cityand provincial autonomy withina hierarchical
system which
87Ibid., p. 40.
88Ibid., pp. 4044.
89Ibid., p. 48.
90Ibid., pp. 58-59.
91Ibid., p. 56.

34 PatrickRiley
recognizesa highestpoliticalpoweractingonly on the next-highest

level of the symbioticassociation,and not directlyon citizensor
collegia. Perhaps the most strikingevidence that in his Politics
Althusiuswas reallydescribingand defendinga systemof medieval
constitutionalism-in whichall levelsof politicalsocietyenjoyauton-
omy, in which corporate bodies are "members" of successively
higherand more comprehensive layersof symbiosis,and in which
nobody has unlimited power (comes in his discussionof the "univer-
sal" powerof theEmpireor realm).
The membersof the realm,or "universalsymbioticassociation,"
are not "individualmen,families,or collegia,as in a privateor par-
ticularpublicassociation."The membersare "manycities,provinces,
and regions" which are united by a pact to communicatethings,
servicesand rightsat the universallevel.92 This definitionof a realm
necessarilyrestrictsthe action of the centralauthorityto the mem-
bers of it, and, by implication,leaves autonomyto thelesserassoci-
ations insofaras theiractions do not violate,above all, the Deca-
logue,and so longas religiousdoctrineis professed"correctly"at the
lowerlevels(if it is not,theAlthusianuniversalpowerhas theobliga-
tion to ferretout heresyand schism,and to promote true reli-
gion).93
Though thereis no "sovereign"rulerat the head of the universal
association,thereis a suprememagistrate who is theultimatepoliti-
cal referent.The "rights" of the universalassociation" are "en-
trusted" to this magistratefor "administration and exercise,"but
their"ownershipand proprietorship" remainswiththeunitedbody.
The suprememagistrateis "supreme" only in relationto inferior
magistrates;94 he is, moreover,alwayselective,even when heredity
has been established,for"the personelectedreceivesthe realmnot
from his dead fatherbut from the universalassociation."95 The
people, for Althusius,indirectly"elect" all suprememagistrates by
delegatingthe rightof electionto a limitednumberof persons(such
as the seven Imperial Electors). This elective suprememagistrate
must, accordingto him, swear a coronationoath to preservethe
fundamentallawsof therealm(the ImperialWahlkapitulation is used
as an example); must rule in accord withthe Decalogue and natural
law; mustseek the adviceof theordersand estatesof therealmin all
92Ibid., p. 62.
93 bid., p. 70.
94Ibid., pp. 115-117.
9s Ibid., p. 127.

importantmatters(includingreligiouscrises);and is removableifhe
failsto liveup to hisobligations.96
A centralfeatureof Althusius'systemis the importanceof the
"ephors,"of the greatermen of the realmwhose functionit is both
to restrictand to supportthe universalpower.The ephors,who in
another capacityare territorial nobles and heads of provinces,are
either"general" or "special" ephors; the former,like the Imperial
Electors,choose the suprememagistrateon behalfof the universal
administration, are "guardians"of the realmin the incapacityof a
ruler or duringan interregnum, are to resista tyrannicalsupreme
magistrate, and finally, are to defend him in the exercise of his
legitimatepowers.9" "Special ephors" are the territorial
rulerswho
are individuallyinferiorto the universalruler.Obviously,"general"
and "special" ephorsare sometimesthesame personswearingdiffer-
ent costumes.The power of the special ephorswithintheirown
territories Althusiuscalls equal to that of the suprememagistrate in
the imperium;moreover,the ephorsare collectivelysuperiorto the
magistratewhen they representthe sovereigntyof the United
body.98
ThroughoutAlthusiusrunsthe idea of powerbalancedand moder-
ated by autonomy,by therequirements of theDecalogue and natural
law, by the oppositionof Senates and prefects, provincialrulersand
provincialassemblies,the suprememagistrate and theephors.Justas
it is the duty of the ephorsto restrictthe suprememagistrate, said
Althusius,so too the lattermust"take care that none of the ephors
misuses his limited imperiumto the ruin of his subjects or the
realm."99 The ephorselect and restrictthe ruler,but they,as terri-
torialrulers,are "still provincesof therealm," o00are stillrestricted
by the whole systemof balance and conformity of law to religious
principles.Althusius summarizes his constitutionalismin a fewlines:
The imperium of
of the kingoughtnot to be so enlargedthattheliberty
the peopleis suppressed.Norshouldtheordersand estatesbe so amplified
that theytreatthe kingwith contemptand violatethe populace.Nor
shouldpopularlicensebe permitted to theextentthatit reducesrespect
forthekingorupsetstheaffairs ofthecommonwealth. 101
96Ibid., pp. 171-180.

Ibid., pp. 98 and 100.
98Ibid., p. 103.
99Ibid.
1oIbid.,
101 p. 202.
Ibid., p. 170.

36 PatrickRiley
Clearly the "federalism"of Althusiushas littleto do with the

modern notion of the federalstate, in which centraland regional
governments,both of them states, exercise ordinarylegal power
directlyover individuals.Althusius'systemis in essence a reduction
of the structureof late medieval politics, and especially of the
Imperialstructure, to generalprinciplesof corporativeautonomyand
powerrestrictedby divine,naturaland constitutional law. Of course,
importantfeaturesof medieval politics have been dropped: the
Empire is not for him an internationalpower (as it has been fora
writersuch as Dante) '0' and the natureof powerat anygivenlevel
is not based purelyon land-ownership, but is alwayspoliticalpower,
founded in the consentof the people. Despite these modifications,
Althusius'insistenceon the religiousfunctionsof the public magis-
trates (he even cites with approval Constantine'ssettlingof the
Aryancontroversy), his insistenceon the subordination of positiveto
higherlaw, and his emphasis on medieval constitutionalbalance
between kings,"ephors," provinces,estates,cities,collegia, and so
forth,places him more on the side of medievalcorporatism thanon
the side of the modernfederalstate and its notionsof sharedsover-
eignty,concurrent jurisdictionand dual citizenship.
It remainsto mentionthatAlthusiusdid, in fact,talkabout feder-
alism,under that name, in his briefdiscussionof the externalrela-
tions of realms.Despite suggestionsthatAlthusius"explicitlydevel-
oped" the distinctionbetweena federaland a confederalunionin his
conceptionof "full" and "not-full"federation,103 it would be more
accurateto say that,forhim,"not-full"federationmeantmerealli-
ance or treatyrelations,while "full" federationmeant complete
consolidationof two polities.Althusiusindeed avoided the errorof
seeinga polity such as the Netherlandsas a merealliance,but that
was because of his hierarchicalconceptionof autonomouspolitical
unitsin all politicalsystems,not because he conceiveda federalstate
in the modernsense.
The distinctionbetween "full" and "not-full" federation in
Althusiusdoes not, in fact, correspondto the moderndistinction
between federalstates and confederalleagues. In a federation,said
Althusius,"realms,provinces,cities,villagesor towns are received
into and associated with the communionand societyof the one
[original] body." 104 Such a federation,he said, is eitherfull or
102Dante,De Monarchia,passim.
103Ibid.,prefaceby C. J. Friedrich,p. x. Here Friedrich'searlierview on Althusiusas a
federaltheorist-inhis 1932 editionof the Politics-seemsmorejust.
14Althusius, Politics,trans.Carney,p. 84.

not-full.And his definitionof a fullfederationleaves no doubtthat

by it he understoodcomplete integrationof the federalizingcom-
munities,completemutualabsorption,not a federalstate.
A [full]confederation is oneinwhicha foreign realm,province,orany
otheruniversalassociation, togetherwith its inhabitants, fullyand
are
coopted
integrally and admitted the and
right communion oftherealm by
communicating of its fundamental lawsand of
right sovereignty.To the
extentthattheycoalesceandareunited intooneandthesamebodythey
becomemembers ofthatoneandsamebody.105
Surely this is not a definitionwhich bears any relationto the
modern conceptionof a federalstate; it refersto simpleand com-
plete unification.(In such a unifiedsystem,there would still of
course be corporativeautonomy,but that is a different matter.)On
the otherhand,Althusius'conceptionof a "not-full"confederation
reflectsexactlythe almostuniversal17th centurypractice-initiated
by Bodin and carriedon by Pufendorf, interalia 106 -of conceiving
federalism in termsof international relations.A "not-full"confedera-
tion is one "in which variousrealmsor provinces,while preserving
theirrightsof sovereignty, solemnlyobligatethemselvesone to the
other by a treaty covenant,preferablyfor a fixed period of
or
time." The purposesof such "not-full"confederations are "mutual
defenseagainstenemies" and peace and friendship amongthe con-
federates.Althusiusplaced a clear emphasis on the international
characterof "not-full"federationby advisingthat commonwealths
be carefulof destructionthrough"the downfallof a confederated
ally" (implyinga relationso loose thatone could avoid destruction)
and that theylook to the ally's faithfulness and constancyin previ-
ous transactions." 107
All in all, thereis in Althusiusscarcelya traceof the modern
distinctionbetween federal and confederalsystems.He reduced
"full" confederation
to meretreaty-relations
basedon contracts,
to
andnotevenperpetual
"transactions," transactions
atthat,butcove-
nantsmade "for a fixedperiod of time"-that is, whichwill expire.
On thewhole,then,one can agreewithCarl Friedrich'sassertionthat
"itwasperhapsnonetoo fortunateto characterize
therelation
ofthe
less inclusive or
groups symbiotic consociations
[to themorecom-
prehensive] as federalism."
o08
l1sIbid., pp. 84-85.

1O60n Bodin and Pufendorfas federal theorists,cf. the author's articlementionedin
note 1.
107Althusius,Politics,trans.Carney,pp. 84-85.
108CarlJ. Friedrich,Introductionto Politica Metbodice Digesta ofJohannesAltbusius,
(Cambridge,Massachusetts:HarvardUniversityPress,1932), p. lxxxvii.

38 PatrickRiley
(There was, moreover,no Althusianconceptionof international

federalism,no idea of a federalworld-statebased on eithermedieval
principles on leaguesof sovereignpowers.This shouldcome as no
or
surprise,since Althusius,as a devoutProtestant,could not havefav-
ored the revivalof the universalauthorityof thePapacy,norof that
of the Emperorto the extent that he was the "secular arm" of
Christendom. Althusiustreatedthe Empire,therefore, as "universal"
only in the sense of beingthe highestpower withina giventerritory
(Germany);regionalkingswere "universal"forhim as well.And his
insistenceon the "just causes of war" precludedany international
pacifism;peace forhimcould not outweighthe claimsof
federalistic
"justice.")109
Takingeverything intoaccount, Althusius mustbe considered a
lateexpositor ofmedievalpolitics, rather than anearlyanticipatorof
the federalstate-unless one understands "federalism"in Laski's
senseas meresocialpluralism andcorporatism. 11oAmong 17thcen-
tury German theorists
political it is arguable that theHanoverian
LudolphHugocamefarcloser toa modern theoryoffederalism with
his notionof "doublegovernment" (in De Statu Regionum Ger-
maniae) than didAlthusius in hisPolitics, and thatLeibnizsaw more
clearlythananyone before 1787thedisadvantage oftrying tounder-
standfederalism, whichrequires division in
ofpower, terms of"indi-
visible"sovereignty.Whatseemscertain, in anycase,is thatAl-
thusius' theoryof"symbiotic" constitutionalism constitutes"feder-
alism"onlyifonedefines thatterm so loosely thatitloseswhatever
precision it mayhave.Althusius, indeed, shares withmodern federal
theory a devotionto territorialautonomy (amongseveral kindsof
autonomy), andan aversion to centralized absolute but
sovereignty;
thisis arguably notenough to callhima "federalist" whenso much
effort has beendevotedto drawing fairly precise be-
distinctions
tweenfederalism, confederalism, decentralization, devolution,cor-
andpluralism."'
poratism,
109Althusius,Politics,trans.Carney,pp. 181-184; cf. the author's "Kant as a Theorist

of Peace throughInternationalFederalism,"WorldAffairs136, no. 2 (Fall 1973), in which
Kant is treated as one who wanted to produce peace througha universalquasi-federal
"equilibrium"between "republican"(constitutional)governments.
110For Harold Laski's theoryof federalismas pluralismand corporatism,see above all A
GrammarOf Politics (London: G. Allen and Unwin Ltd., 1927), the chapterentitled"Au-
thorityas Federal."
IIIOn thesedistinctions,cf. the author'sarticlementionedin note 1 above.

V
The rise of the federalstate, as a compromisebetweentwo his-
toricallydifferent kindsof government, is too well-known to require
muchcomment.That AlexanderHamiltonthoughttraditional"foed-
eralism" imbecilic,112 and that Madison was forced to admit,
grudgingly, that the "national countenance"of the new American
Constitutionwas "disfigured"by a numberof federal"blemishes"
(Federalist39), 113 and that the two of themtogether, in Federalist
19 condemned"the repellentqualityincidentto thenatureof sover-
eignty,"14 is familiarto all studentsof federalhistory;that the
defendersof state-particularism, for theirpart,fromPatrickHenry
and Jefferson to JohnC. Calhoun,treatedthe Union as a compact
between sovereigns,dissolvableat the discretionof the contracting
parties,is equally familiar.1I (Perhapsthe mostgraphicexpression
of the state-sovereigntyview was put forwardby a Virginiastates-
man: "Askingone of the statesto surrenderpartof hersovereignty
112AlexanderHamilton,The Federalist,No. 15. This is probablythemost able critique

of traditional"foederalism"everwritten.
113JamesMadison,The Federalist,No. 39; cf. No. 62.
Alexander Hamilton and James Madison, The Federalist,No. 19. In Federalist #'s
18-20, Hamilton and Madison sketcheda historyof federalismfromantiquityto the pres-
ent, concludingthat all federalsystemshad been ruinouslydefectivebecause of state-sover-
eigntyand central impotence. And in Federalist #9 Hamilton had had to refuteMontes-
quieu's theoryof federalism-whichwas particularlyhard because Montesquieuhad called
federalismthe salvation of "small republics;" and because some of the smallerAmerican
states saw themselvesas these very "small republics"; Hamiltonhad to dismiss(or rather
perverselyre-interpret) Montesquieu in a way whichwould not alarm"smallrepublics."It is
worthpointingout thatit is withMontesquieuthatthe connectionbetweendemocracyand
federalismbeginsto become a major theme in federaltheory,but thiscannotbe gone into
here. See Montesquieu, The Spirit of the Laws, trans.Nugent,vol. 1 (New York: Hefner
PublishingCo., 1949), book IX; cf. MartinDiamond "The Federalist'sView of Federalism,"
in Essays in Federalism (Claremont,California:Institutefor Studies in Federalism,1962)
which contains a penetratinganalysis of Hamilton's use and abuse of Montesquieu.(The
author's interestin federalismwas originallyaroused by Diamond's remarkablelectures
fifteenyearsago.)
Patrick Henry made his views on this point quite plain at the VirginiaRatifying
Convention: autonomous states, he insisted,were "the characteristicsand the soul of a
confederation."The opening phrase of the Constitution("We, the people of the United
States") was, for him, a perversionof federalism:"who authorized them to speak the
languageof We,thepeople, insteadof We, the States?" The Americangovernment underthe
Articlesof Confederation,he urged,was "adequate to everypurposeof humanassociation."
(See Elliot's Debates, vol. III, pp. 22 and 146). Jefferson's
positionwas neverso consistent;
he was more of a "nationalist" in 1787-88 than ever again, but in and afterthe Kentucky
Resolutionshe fell back increasinglyon ideas of compact and state-sovereignty(thoughnot
of secession). Calhoun also went throughseveral changes,but after 1832 developed the
theoryof federalismas a compact to its greatestheight;here his formidableDiscourse on
the Constitutionof the United States should be consulted.WhetherCalhoun's Theory of
"concurrentmajoritarianism"is reallya kindof federalnotionis too intricatea questionto
take up here.

40 PatrickRiley
... is likeaskinga lady to surrender partof herchastity.")16 As is

only too well-known, thisconflictof views,whose causes cannotbe
gone into here,was never settledin principle-sincefederalismcon-
tainedso manydiscordantideas favorableto bothsides-but onlyby
war. 117 And sincesomethingat leastcomparablehas happenedwith-
in the last few years,in the case of Biafra'ssecessionfromfederal
Nigeria,it is hard to thinkthatthe questionof dividedsovereignty is
as dead as all the participantsin those warsfoughtto "settle" this
point. If one knowshow federalism evolved,ifone sees how regional
autonomy came to be seen in terms of sovereignty, then one can
understandwhy the central government of a federal systemmay
want to representas a rebellionor a revolutionwhat a regional
memberwill representas his "legal right"as a "sovereign"power.
(The recentcivilwar in Pakistanappearsto confirmthispoint:what
was once East Pakistanclaimed to be secedingfromthe Pakistani
federalunion,but thePakistanicentralgovernment characterized the
secessionas a rebellion."8 None of thisis surprising-it happenedin
a comparableway duringthe AmericanCivil War and in the Swiss
Sonderbund War-but it does show somethingabout the volatile
characterof federalism.)In crisissituationsin federalsystems,the
international relationsideas whichare at theheartof federalism tend
to rise to thesurface;ifone knowssomething about theevolutionof
federalism,he can understandwhy this is so (whetherhe can do
anythingabout it or not); and by knowingsomethingabout writers
such as Leibniz and Hugo, he can see how conceivingfederalismin
termsof strictsovereignty was occasionallyavoidable-butonlyocca-
sionally.(Whether there is anythingin Althusius'Politicswhichis as
valuable to an understandingof federalismas Hugo's theoryof
"double government," or Leibniz' notionthatfederalism is necessar-
ily misrepresented if viewed in terms of "indivisible" sovereignty,
one mayreasonablydoubt.) Perhapsultimately, thestudentof feder-
alismwilljudge the verythingswhichmakefederalism desirableand
occasionallypossible also make it unstableand occasionallyperish-
able; that it is afflicted,in a highlyparticularway, by Rousseau's
dictumthat "the flawswhichmake social institutions necessaryare
the same as make the abuse of themunavoidable.""9 But he may
116Citedby ArthurSchlesinger,Jr.,in TbheAge of Jackson (Boston: Little,Brownand

Co., 1946), p. 29. (I owe thisreferenceto Samuel Calhoun,Harvard'71).
I17See note 118.
118The fact that East Pakistan has now become the independentstate of Bangladesh
does not affectthe point made here, i.e. that in civil wars in federalsystemsthe seceding
partiesordinarilyrepresentas a rightwhatthe centralgovernmentcalls rebellion.
119JeanJacques Rousseau, A Discourse on the Originof Inequality,trans.Cole (New
York: E. P. Dutton and Co., Inc., 1950), p. 263.

stillwantto knowwhathappenedand how, and why;understanding,

thoughit is, as Hegelsays,retrospective, 120 is not worthless
because
if
it is useless. It is even conceivablethat the worldgraduallymoves
away fromthe idea of strictsovereignty, eitherby assumingthatit is
no longernecessary(Laski), 21 or that it was nevernecessary(de
Jouvenel), 22 federalismcan be reconceived-alonglinesof rational
negotiation,discussion,and mutual concession, as suggestedby
Leibniz-in a way such that legal structureno longerdefeatsthe
reasons for havingfederalism.(Successfulfederalsystems,indeed,
seem to relypreciselyon the negotiation,discussionand concession
which Leibniz recommends,and not just on "mandates" givenex
plenitudiopotestatis.)But whetherthiswillhappenuniversally short
of the day thatregionalmembersof federalsystemsfeelsafe in no
longer insistingon their "sovereignty,"it would be hazardous to
guess. Membersof federalsystemsinsiston their"legal rights"as
"sovereigns"because of imperfectmutualtrust;and it seemsreason-
able to suppose that as long as the desireto providesafetyforone's
"autonomy" in a world of imperfecttrust subsists,claims about
"sovereignty"will continueto be a characteristic featureof federal-
ism,even if this is sometimesmoderatedby Leibnizian"mutualcon-
cession."
120Georg William Friedrich Hegel, Preface to Philosphy of Right, transT. M. Knox

(Oxford:The ClarendonPress,1942).
121Harold Laski, A Grammerof Politics, 5th ed. (London: G. Allen and Unwin Ltd.,
1967), p. 44.
122Bertrandde Jouvenel,Sovereignty,trans.J. F. Huntington(Chicago: Universityof
Chicago Press, 1957), p. 169. The studyof federaltheory-and particularlythe studyof the
evolutionof federalideas out of internationalrelationsconcepts-is not only not detrimen-
tal to empiricalfederalstudies,but it even essentialto them.Despite some recentobjections
to consideringfederalismas if it had to exemplifya prioricharacteristics, to the "formalis-
tic" and "legalistic" study of federalism,it turnsout that when those who want to treat
federalism"flexibly" (perhaps as a "process") get down to distinguishing federalismfrom
other political formsthey necessarilyrevertto the "legalistic" and "formalistic"ideas of
divided sovereignty,concurrentjurisdiction,dual citizenship,etc. Actually, the present
studyhelps to show why thisis so-why conceivingfederalismin termsof sovereignty led to
the adoption of the terminologywhich is used even now in federaltheorizing.The cases of
Biafra and Bangladesh show that "legalistic"'federalideas such as autonomy,sovereignty,
etc., stillhave considerablevitality-andthe doctrineof secession is not exactlydead, either.
If one knows how federalideas evolved, none of this will seem surprising; and such knowl-
edge will not hinder,let alone preclude,empiricalfederalresearch.


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Influencedby the notions that sovereigntyis (by definition)

1 For a fulleraccount of the way in which federalismwas misconceivedin the early

? PUBLIUS, The Journalof Federalism,The CenterforThe Study of Federalism,Summer1976

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rounded byincreasingly powerful centralizedmonarchies under such

4See E. Bonjour, H. S. Offler and G. R. Potter,A Short Historyof Switzerland

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in privatelaw; it was no longereven a public formof order,and so

6JohnC. Calhoun,Works, ed. Cralle,vol. 1 (NewYork:D. AppletonandCo., 1883),

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whowanted a federal government understood,

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1787, it was mainlyGermanpoliticalthinkers, above all Leibnizand

11See particularlyWalterUllmann'sextremelyhelpful"The Concept of Sovereigntyin

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Thedoctrine(andtheexercise) ofsovereign powercouldbeseen

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based on land control)was a happy way to get out fromunderthe

18Ibid., p. 120. Perhapsthe quickestway to get a livelysense of the medievalecclesias-

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eignwill,thus insuringthat privateprerogative would no longerpass

21Ibid., pp. 179-80.

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men beforethe social contract.24 The very creationof a supreme

At this point modern internationalrelationsbetween sovereign

24Thomas Hobbes, Leviathan ed. M. J.Oakeshott(Oxford: B. Blackwell,1957), p. 83.

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17th centurythe theoryof the legal equalityof stateswas a fixed

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expectedto say thattheNetherlandish and Swissunionsweremerely

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lesserassociations [within single states],theconcept ofsovereignty

The interaction oftheideasofsovereignty andstate,withactual

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If, however,mostof modern federalthinking after

36Despitetheefforts of Webster,Marshall,Kent,Storyandothersto weakentheideas

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truewas "irregular"or (sometimes)"monstrous."A federalsystem,

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seem to haveinfluencedeach other.Since Hugo was firstto writeon

44Ludolph Hugo, Introductionto De Statu RegionumGermaniae(Helmstadt:Sumpti-

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argumentin which,at firstviewingthelocal Germanpoliticsonlyas

48Ibid., sects. III and IV.

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who are in chargeof a city or some regionclearlydepends in all

Finally Hugo turned to what would today be called a federal

51Ibid., sect. VII.

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the Empire,was that for the firsttime in federaltheorya local

notably modern and non-doctrinaire discussion of the kinds of

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Anotherstrikingthingin Hugo is thathe seemsto have actually

58Ibid., sect. XI.

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ingthe"universal" authorities, theEmpireand a reunited Church-

59GottfriedWilhelmLeibniz, Entretiende Pbilarkteet d'Eugtne (1677), in Oeuvresde

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eigntydoes not excludetheobediencethatone owes to the ordersof

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importanceis being considered,as peace, war or treaties,the dis-