Making of a German Constitution : a Slow Revolution

–3–Images of the GemeinwesenThe Germanists and the Growth ofCustomary Law ConstitutionalismMy purpose is in equal measure a practical one, for what could be more practical thanawakening a feeling for the Fatherland in so far as I succeed in capturing your attentionand putting into your hands old or misplaced keys ... which can disclose the basis ofGerman law. In doing so, much material must be adduced which concerns the language,poetry, and religion of former times. 1 —Jacob Grimm, University of Berlin, 1841The oldest law of Rome, as among all nations, was founded on the common understandingand consent of the people ... and this we are accustomed to call the consuetudinarylaw. The changed political relations of the different orders of society, and not discontentwith this condition of law, occasioned, at a very early period, a grand fundamental ordinance,which besides the constitution of the state, contained a great part of the old customs.In this sense, the Twelve Tables preserved the original principles of the civil law,and such continued to be their character until the time of Justinian. 2—Friedrich Karl von Savigny, 1815The theory of legislative revolution emerged from the debates of 1814 and 1815 asa programme for constitutional transformation. While this programmatic approachto political revision had broad support in liberal circles, it nevertheless still had tobe effected, and, in the technical language of law, the data for the system had to bediscovered. In the first phase, which spanned the years between 1815 through 1846,the progressive jurisprudence Savigny had called for focused on recovering the datafor a system, namely, the vaterländisches Recht. This was, of course, the politicalelement, and what Grimm, in his lecture at the University of Berlin, referred to as‘old or misplaced keys’. 3 As noted above, Savigny also did not fail to point out tothe readers of his Geschichte des römischen Rechts im Mittelalter (1815) the politicalimportance of customary law. Relying, again, on classical references to communicatecontemporary political mobilization, he reminded his readers that during ‘the