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I am interested in absolute monarchies but I have a question I need answered. In an absolute monarchy, such as the Ancien Regime of France or the Qing Dynasty of China, when the monarch orders someone to do something, and it goes against the written/codified law of the country, is the person obligated to do it? Is it still illegal or is it now legal because the monarch ordered it?

Example:

Let's say robbing a bank is illegal in a country that has an absolute monarchy. The monarch orders someone (let's say Bill) to rob a bank. Bill follows the monarch's order and robs a bank. Is it still illegal for Bill to rob a bank or is it now legal for him to do it because the monarch ordered him to do it?

I hope that makes sense.

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  • I don't think the type of government really has much to do with the concept of "do orders trump laws"? Regardless, as to whether orders trump laws would depend entirely on the laws of said jurisdiction. I don't think the question is really answerable beyond that.
    – user1530
    Sep 18 '15 at 16:44
  • I'm talking about an absolute monarchy where the monarch is regarded as the absolute ruler.
    – Jay
    Sep 18 '15 at 17:01
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    Given that Ancien Regime France predates most theorising on norms, legality and the like you might want to specify what you mean by “legal”.
    – Relaxed
    Sep 18 '15 at 17:31
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    I think this would depend on specifics of legal nuances of a specific country.
    – user4012
    Sep 18 '15 at 18:11
  • Lets use Saudi Arabia for an example. If the King orders someone to do something, and it is illegal under the country's written law (not Sharia law), is that thing then legal for the person to do?
    – Jay
    Sep 18 '15 at 19:03
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Almost by definition, the idea of an absolute monarchy presupposes that the distinction between what's legal and what the king wants is murky so the whole question feels anachronistic in several ways. Many features of our thinking about criminal justice were only formalised or generalised later. That includes the Nullum crimen, nulla pœna sine lege principle, i.e. the notion that crimes and punishments must be defined explicitly in the law, and much thinking about the hierarchy of norms and legality.

Concretely, in absolutist ancien régime France, all justice proceeded from the king. Judges and tribunals were regarded as justice déléguée but the king retained the right to judge any matter himself (justice retenue). Historically, preexisting courts (because absolutism was only established and theorised quite late) were brought into this system after the fact and justice rendered by local aristocrats was considered to be justice concédée (i.e. ultimately legitimised by the king).

So the king could take hold of a case and dispense any punishment he saw fit without having to provide any justification. That included declaring someone innocent, increasing the punishment or summarily imprisoning or exiling someone (thus stopping potentially embarrassing cases immediately). In fact, the practice of imprisonment itself was created ex nihilo by the king as laws and customs only envisioned death and exile as punishments (usually however, the case would run its course and the family would then petition the king's officers to have the punishment reduced to a prison sentence).

One instrument of this justice retenue, the lettre de cachet was especially controversial. They were used (among many other uses) to imprison mad people or prostitutes without any basis in written law or sometimes to have people detained at the behest of their family. In this case, crime and punishment were just a matter of tradition and convenience, the king could in principle simply ignore them and if he does nothing, they are not illegal per se.

Under Louis XIV, the king also codified various types of lettres de justice. The lettre d'abolition was something we might recognise as a modern pardon, simply cancelling a punishment. But the king could also grant a lettre de réhabilitation (which would restore the “honour” of the person) or a lettre de rémission (which would pardon someone for their actions and stop criminal proceedings immediately, even before they have been found guilty).

You also have to consider the fact that at the time France had nothing like a well-functioning criminal justice system. By modern standards, it was a pretty lawless place, often in the grip of civil war under Louis XIII who had to retake several French cities from the protestants, and during the minority of Louis XIV. In fact, the Fronde was in part a push back from the aristocracy against absolutism but it was not a conflict that played out in front of some independent court system debating the legality of this or that decision, it was a military conflict.

In this context, it's difficult to see the monarch ordering someone to rob a bank and people wondering about the “legality” of the whole thing. Incidentally, instead of ordering a robbery, the king could also simply use his powers to dispose of and dispossess powerful opponents and give their wealth to someone else. And yes, he could have someone killed without relying on some written law or special court.

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If we are speaking about 17th century France, yes, the monarch's orders would make any action legal as "special action". Even not necessarily monarch's orders, but even say, prime minister's order in the name of monarch. The problem for the perpetrator would be to obtain a written order in case anyone would question the legality of his actions.

But note the following. When we are speaking about absolutism, we usually refer to certain European period in history which followed feudal partitioning. This means that under absolutism there were still some restrictions on royal power remaining.

The nobility was still in force and could make conspiracies to usurp power and install a new king in case they felt the current king became crazy or mad or restrict the royal power legally under pretext that medics say he is mad and install a regent or transfer power to a collective organ like a royal concil. If the king is mad, he is deprived of total power. Something like this happened for instance in England. There were also attempts at accusation of certain kings of high treason by the nobility.

The absolutism was strengthening over some centuries, but in many countries this led to court coups, revolutions, murders of kings, false pretenders etc.

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  • What about in the Russian Empire?
    – Jay
    Sep 20 '15 at 5:48
  • @Jay in Russia absolutism reached the highest point under Ivan the Terrible. Evan under him, it was difficult for him to get divorces with his wife because the church was objecting so he had to struggle hard against the church. After that point the nobility tried to install various pretenders whom they hoped would be controllable. These were False Dmitry I and False Dmitry II. This period is called time of troubles. One of them quickly lost his authority due to his sympathy to Catholicism. Later they elected a new dynasty, the Romanovs. Peter I tried to reform the church but faced opposition.
    – Anixx
    Sep 20 '15 at 6:14
  • Do you have sources for this? (I know there's a famous fictional example - Dumas' Three Musketeers - with Richeleu's letter given to Milady Winter), but is there actual historical basis for this?
    – user4012
    Sep 21 '15 at 0:05
  • @user4012 you know, even in modern Russia the president can pardon any criminal he wants. This was not the case with the USSR though - in the USSR a decision of a collective body was required.
    – Anixx
    Sep 21 '15 at 5:06
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    @user4012 I assume Anixx is talking about en.wikipedia.org/wiki/Lettre_de_cachet although most were about punishing someone outside of any due process, not necessarily about exempting them from punishment (but there weren't that many written laws at the time, the Nullum crimen, nulla pœna sine lege only became a core principle of criminal law in continental Europe one or two centuries later).
    – Relaxed
    Sep 21 '15 at 10:56
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In an absolute monarchy, the monarch is above the law.

The written law just represents a collection of standing orders given by the monarch. Any law can be changed, repealed or ammended by the monarch at any time. So when the monarch made a law "Bank robbers are to be hunted down and punished" and then orders Bob to rob a bank, the law essentially becomes "Bank robbers except for Bob are to be hunted down and punished".

In reality however, few monarch really governed with 100% absolute authority. In reality they also depended on the loyality of their nobels. A nobel who disagrees with the monarch could deny them resources (not officially, of course, but under false pretenses) or even replace them through an open rebellion or a secret assassination. This layer of control prevented monarchs from acting too arbitary.

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It comes down to how you define absolute monarchy (also known as absolutism), but in the traditional definition of an absolute monarchy the monarch rules everything, they can do literally anything they want. If there are codified laws the monarch can change or overrule them, if they don't change the law then they can give royal pardons to people who break it.

So in your example it's up to the monarch to decide whether Bill broke the law or not, and if there are parliaments or courts in place, the monarch can still overrule their decisions.

"Absolute monarchy or absolutism is a monarchical form of government in which the monarch has absolute power among his or her people. An absolute monarch wields unrestricted political power over the sovereign state and its people." - Wikipedia

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  • I think the question was whether there's a general codified rule that says "anything done on orders of the King is lawful even if it contradicts the law", without the King having to change specific law to specific circumstance.
    – user4012
    Sep 21 '15 at 0:06

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