By the middle of the 17th century, the scholastic exposition of the principles of Roman law and the application of such principles to practical constitutional questions had reached impressive proportions. Therefore, the basis of the organization of the populus is both rationally and legally justified. Moreover, the legislative powers of the people are based exclusively on the ius gentium.
Although the populus is the source and origin of the legislative power, there is nothing to prevent the people from transferring their sovereign power to a ruler. There is considerable difference of opinion on the question of the revocation of the Lex Regia. In scholastic legal thought, the will of the people was often interpreted to represent the source from which empire emanated.
In effect, they expanded the application of the Lex Regia from the relationship between the emperor and the Roman people to that between any sovereign ruler and his people.23. In the legal-political thought of the mid-seventeenth century, the transfer of political power from the people to the ruler had become an established principle of democratic constitutionalism. In Roman law, the emperor is legibus solutus to the extent that nothing opposes the abundance of power, and the will of the sovereign overcomes all positive laws.
The emperor's full power is the product of the irrevocable alienation of power from the people under the ius gentium to the princes via the Lex Regia. In medieval legal thought, the concept of plenitudo potestas played a crucial role in the development of the idea of sovereignty. In his De Jure Civitatis, Ulrich Huber shifts the focus to the ruler's duties according to natural and divine law.
Arguments supporting the legal bonds limiting the powers of the sovereign escalated in the literature of the Dutch Revolt. A number of important legal principles arose from the fundamental duty of the princeps to promote the common good. In Baldus' view of tyranny, he assigns a central place to the principle of the common good.
The Dutch literature that supported the Dutch Revolt opposed tyrant rule because it undermines the common good and the welfare of the subjects. The text of Digest 1 4 1 leaves the possibility of interpreting the transfer of the people's power in contractual terms to the emperor. The transfer of the people's sovereignty to the emperor, whether permanent141 or conditional142, could well be accommodated within the paradigm of formal agreements established between the people and the emperor.
In the Dutch treatises of that period, sources from classical Roman law were extensively cited in support of the contractual ties arising from natural law and international law to which the sovereign is subject.
Conclusion
The duties associated with the coronation oath require the sovereign to protect the welfare of the res publica.152 During the period of the Dutch Revolt, Dutch arguments with Roman law and scholastic arguments in favor of the contractual nature of public law relations between the ruler and the people abounded.153 Also speech on the solemn ties of oath and treaty-making by the sovereign reached its peak in the period immediately preceding the rebellion. The authors emphasized the seriousness of contracts and solemn commitments154: contractual commitments must be fulfilled.155 They also cited scholastics and sources to emphasize the weight of legal commitments and duties of the ruler to his subjects. The introduction of a strong measure of legal thought inspired by Roman law and scholastic legal practice introduced and/or expanded fundamental concepts into Roman-Dutch legal thought that had important consequences for the relationship between rulers and subjects in public law: first, the value of treaties with a limiting effect on the powers of rulers; secondly, the subjection of the political power of the sovereign to fundamental limitations arising from the intrinsic nature of law itself; thirdly, the elevation of justice and the interests of the common good above the particular political relations between the sovereign and subjects.
These elements served as the basis of Ulrich Huber's approach to and statement of the Romano-Dutch legal principles of constitutionalism. Huber's law-based democratic constitutional theory can be described as an ideal-type construct in which the principles of individual autonomy and collective autonomy are integrated into a highly complex system of justice-oriented governance under law. . The scholastic-jurist interpretation of the principles of Roman law concerning the public law relations between ruler and subjects gave Huber a legal basis from which he could describe both historically and systematically the legal principles of the constitutional state.
Some of the core issues addressed in Huber's De Jure Civitatis concern the question of how political power exercised by the majority (hence transferred to a ruler with sovereign political power), to live under laws that it has made itself and what it can change as it pleases can be reconciled with the legal interests and rights of the individual. The following three constitutional aspects represent fundamental principles in Huber's statement of the legal elements contained in a universal system of public law. First, Huber focuses on the nature of the state based on law: the republican pursuit of the common good in a society committed to justice provides the basis for the legitimacy of the democratic association.
According to Huber, democracy recognizes that the unwritten law that puts the political entity in the service of its subjects must override the expression of the sovereign (whether the people or their representatives) just as it overrides individual autonomy in the state. In Huber's theory, the private sphere of personal relationships is strengthened by the individual's right to associate freely and to establish legal entities for the protection and promotion of the individual's interests in the diverse areas of human existence. Associations founded on individual freedom also reflect the principle of pluralism under the principles of justice and the demands of the common good.
Thirdly, both the powers of the sovereign political authority and the freedom of individuals in a pluralistic regime are limited. Only the state, by its sovereign political authority, is authorized to suppress private violence by wielding the power of the sword in promoting public justice. Huber's emphasis on the inherent power of law to limit political authority, his idea of the role that legal personality could play in empowering the individual.
