Making of a German Constitution : a Slow Revolution

100 • The Making of a German Constitutionexistence of the free Republic, eloquence and jurisprudence were, besides war, theonly paths to favor and renown’. 4 This effort to recover the vaterländisches Rechtgave birth to customary law constitutionalism in Central Europe. It subscribed to apotent historical doctrine, which held that German customs and traditions were theprescriptive source of German liberties, a belief that was bound up with liberal demandsfor political revision.The effort to recover the vaterländisches Recht also was marked by the widespreadmobilization of not only German jurists, but the ablest writers generally, andmost notably, historians. A critical indication of this mobilization was the rapid proliferationof new legal journals. This trend began in the 1820s and accelerated after1850 and with each phase of constitutional transformation. In these journals, Germanconstitutionalism continued to flourish even during the reactionary years following1819, and, in them, scholars are offered not only a rich source of German sociopoliticalthought, but also sociopolitical images of the national Gemeinwesen or commonwealththat liberals intended to bring about through constitutional transformation.At the same time, legal antiquarianism extended the mobilization into the realm ofpopular culture. It allowed for the reliance on sources well beyond the realm of formallaw and expanded the producers of the data for a system of law to include poets,folklorist, musicians and the like. The moral of every fairy tale came to be seen asan expression of prescriptive German liberties. If ordinary Germans could not graspthe highly technical legal writing, they could know their prescriptive constitutionthrough alternative expressions of German customs. As a result of this mobilization,a national legal culture developed in German-speaking Europe well prior to formalunification in 1871.The Politics of Roman Legal HistoryPerhaps more than a deep political dissension, the division between Romanist andGermanist in the historical school after 1815 reflected an apportionment between thetechnical and political elements of German jurisprudence. The study of Roman lawcontinued to flourish, but on the alternative historical and technical basis discussedthe in last chapter. ‘Roman law’ was seen ‘as a great teacher that would permit modernlawyers and legislators to aid the development of their own uniquely nationalistlegal systems’. 5 The purpose of the new Roman legal history was to lend support tothe efficacy of rationalizing German customary laws and a programme of constitutionaltransformation. Savigny’s comments mentioned in the closing paragraphof the last chapter are worth repeating here. After the collapse of the Roman Republic,‘more of old Rome had been preserved [in the law] than in any other branch ofpublic affairs’. 6 ‘Consequently,’ he urged, ‘he who still possessed the feelings of aRoman must have found in the law the most congenial subject; and, thus, the noblestintellects must have been devoted to the study of jurisprudence.’ 7 Savigny made