A Posture of Protestation: Civil Litigation and Constitutional Culture in the Reformation-Era Holy Roman Empire

Abstract

Abstract What role did judicial courts play in the constitution of the early modern Holy Roman Empire? Scholars have shown that the frameworks of judicialization (which highlights the peaceful channelling mechanisms of law) and of instrumentalization (which underscores the political uses and abuses of law) are unsatisfactory for fully describing the ways in which high courts shaped and participated in the constitutional landscape of the early modern Empire. Yet historiography on the Reformation cases continues to operate within this rule-of-law/politics dichotomy. This article offers a new way of considering the constitutional significance of the Reformation cases by analysing uses of a legal instrument—the protestatio—in the context of civil litigation. While the protestation is well-known for its uses in the context of imperial diets, its uses in court—and in particular its centrality to the Protestant litigation strategy—have been ignored. This study illuminates not only a more complete account of the role of law and litigation in the history of the Reformation, but also a hitherto neglected dimension of the role of courts in constituting relations among the Empire’s rulers, centred on litigative practices and techniques—the constitutional culture of litigation. It argues that the work of litigation itself—not only in its jurisprudence or the substantive interpretations made, but also in the forms and language through which litigants were required to operate and argue—had a distinctively important role in constituting relations among the rulers of the early modern Holy Roman Empire.