Another querelle: The Usus Modernus Pandectarum and the constitution of the Holy Roman Empire around 1700

In this chapter I examine the German Usus Modernus Pandectarum as another, different example of a “Querelle” in European intellectual culture around 1700. The term Usus Modernus is derived from the title of a work by jurist Samuel Stryk, the Specimen Usus Moderni Pandectarum of 1690, but has been used more generally by legal historians to describe an attitude towards the authority and applicability of the Corpus Iuris Civilis in the modern Holy Roman Empire in the late seventeenth and early eighteenth centuries. In particular, it has been argued that the Usus Modernus was evidence for an increasing awareness of the historical particularity of Roman law, and therefore of the difficulty of applying it to the modern age. Jurists around 1700 knew very well that their own era differed significantly from Ancient Rome. But there is no sign that this caused them to question the applicability of ancient Roman Law to a modern German empire. If the differences in historical circumstances were taken into account and the original intention of the legislator and the actual meaning of the law behind its words made clear, they believed, the Corpus could still be applied to their own circumstances in many cases. The use of Roman law in the modern age was thus a question of legal interpretation requiring detailed antiquarian knowledge of the context in which the law had been framed. One area in which jurists urged for particular caution was that of public law and the empire’s constitution, since they believed that the political system of late classical Rome was fundamentally different from that of the modern Holy Roman Empire. The discussions about the Usus Modernus need to be understood against the background of long-standing debates going back to the early seventeenth century on the nature of the political constitution of the Empire.