Making of a German Constitution : a Slow Revolution

88 • The Making of a German Constitutionthe unprecedented politicization of civil marriage, in Germany, as the very fountainfrom which full citizenship and male liberty sprang and the pillar upon which governmenton the basis of popular liberty rested. In addition, the example of plebeianpolitical revision was one that had focused on the rights of private law first, and itwas only after these were secure that they claimed the rights of public law. Finally,as Vico’s history emphasized, it was not through violent conflict that a governmentbased on popular liberty was obtained, but rather, gradually, through steady steps andlegislation, a point that cannot be emphasized enough.It was Filangieri, however, who took Vico’s philological treatment of Roman constitutionalhistory and developed it into a programmatic theory of legislative revolution.The first step to be taken is to create in the public a wish for the proposed reformation. Achance in the constitution of a country is not the work of a moment, and to prepare theway for it, the inclinations of the people should be gradually led towards it. They shouldbe made fully sensible of the inefficacy of their established laws, and be convinced theirhardships and oppression are owing to them. The ablest writers should be employed tostate the errors and inconveniences of the old system, and the propriety as well as thenecessity of abolishing it, and adopting a more advantageous one. 200The existing order could easily be undermined, Filangieri suggested: ‘Composed ofthe laws of a people at first free, but afterwards slaves; compiled by an opinionatedcivilian, in the reign of a feeble emperor; confounded with an immense number oflocal and contradictory edicts, with the decisions of courts frequently eluding thosevery edicts, and with a variety of barbarous customs originating in the ignorance orcaprice of feudal anarchy, and incompatible with the revolutions to which the worldhas been subject; this heterogeneous system requires little trouble to bring it intodisrepute.’ 201 ‘After prejudicing the public opinion against existing conditions’, hepointed out that ‘a necessary predilection’ for the new order would exist. 202As far as mobilization for such an effort, Filangieri emphasized that it ‘might bedangerous to entrust this important task to a single person’; rather ‘the united laborsof a numerous body of men of the first talents and characters, and possessed of thepopular esteem, would greatly facilitate the work; and whilst it silenced any individuoussuggestions, would create a respect for their joint productions’. 203 ‘Expedientsof this kind’, he encouraged, ‘have been resorted to in all nations, under all governments,and in all ages, and it appears from experience that they have seldom failed.’ 204Most importantly, Filangieri proclaimed his expedient to be a form of revolution. ‘Adecline of the legislative system is a political revolution,’ as he clearly instructed,‘but a revolution affected slowly, which advances by sensible steps, and takes upages to reach its termination.’ 205 Legislative revolution was not ‘instantaneous in itsnature’, but rather, he wrote, the ‘process of a revolution in a legislative system isslow, and consequently there is opportunity for its reformation’. 206