Making of a German Constitution : a Slow Revolution

Toward a German Nation • 89The variety of political thought that appears on his Notanda Liste, especially theprogrammatic ideas of Vico and Filangieri, reveals an element of political radicalismin Savigny’s theory of politics and modern legislation that has not been explored byscholars. It is important to keep in mind that political thought continued to be pragmaticand implied in character. On the one hand, this was the fruit of tradition, and,on the other, it provided a kind of encoded mode of political communication that offeredsome measure of security against the reactionary forces that were consolidatingauthority in Vienna. Programmatic political thought, therefore, was often expressedby appropriating classical references, by reliance on common scholarly knowledge,and by pointing towards writings where the relevant programmatic thought had alreadybeen articulated.In his Vom Beruf, Savigny divided law into two interlocutory elements. The politicalelement he identified as the ‘connection of the law with the general existenceof the people’, and the technical element was the ‘distinct scientific existence ofthe law’. 207 The customs of the people, as Savigny explained, were the source of thepolitical element.Under a republican constitution, the political principle will be able to preserve an immediateinfluence longer than in monarchical states; and under the Roman Republic inparticular, many causes cooperated to keep this influence alive, even during the progressof civilization. But in all times, and under all constitutions, this influence continues toshow itself in particular applications, as where the same constantly recurring necessitymakes a general consciousness of the people at large possible ... The sum, therefore, ofthis theory is, that all law is originally formed in the manner, in which, in ordinary butnot quite correct language, customary law is said to have been formed; i.e. that it is firstdeveloped by custom and popular faith, next by jurisprudence—everywhere, therefore,by internal silently operating powers, not by the arbitrary will of a lawgiver. 208This political element, which could be derived from no other place than the customsof the people, Savigny believed was a vital dimension of participation.The well-being of every organic being, (consequently the states) depends on the maintenanceof equipoise between the whole and its parts—on each having its due. For acitizen, a town, a province to forget the state to which they belong, is a very commonphenomenon, and every one will regard this as an unnatural and morbid state of things.But for this very reason a lively affection for the whole can only proceed from the thoroughparticipation in all particular relations; and he only who takes good care of his ownfamily, will be a truly good citizen. It is, therefore, an error to suppose that the commonweal would gain new life by the annihilation of all individual relations ... When, therefore,the influence of law on the love of country is the question, the particular laws ofparticular provinces and states are not to be regarded as obstacles. In this point of view,the law merits praise, in so far as it falls in, or is adapted to fall in, with the feelings and