Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 103of going beyond it, which prevailed in all other branches of knowledge.’ 26 If anyonehad thought to question ‘the credibility of the ancient writers and the value of theirtestimony, an outcry would have been raised against such atrocious presumption’. 27While every now and then an ‘independent mind’ broke ‘through this fence’, soonthereafter ‘a sentence of condemnation was forthwith pronounced against him’. 28 Itis this questioning of the historical accounts of the classical writers that distinguishedRömische Geschichte from earlier writings. The interpretation, Niebuhr offered, wasmarked by lengthy comparative analysis of classical accounts. This critical questioningis what defined Niebuhr’s account of Roman history as social science andseparated it from previous classical humanism and the Enlightenment approach toclassical learning. As he wrote, history, ‘strictly so called’ had produced little otherthan ‘dry compilations’ and ‘detached observations which led to nothing beyond’. 29Philology, according to Niebuhr, began to change these conditions in the lateseventeenth century, and Roman history was touched by the ‘youthful spirit of freedom’.30 The era was a new one in Germany, where ‘men were no longer satisfiedwith a superficial view in any field of knowledge’. 31 Yet, he also rejected the purerationalism of the eighteenth century and emphasized that ‘the work of destruction,which had given pleasure to the preceding age, in its anger against the continuanceof authority founded only on usurpation’, was no longer accepted. 32 His ‘countrymen’,Niebuhr wrote, ‘strove after definite and positive knowledge’, and a literature‘worthy of our nation and our language’ resulted from this commitment. 33 Philologyin Germany recognized ‘its calling, to be the mediator between the remotest ages, toafford us the enjoyment of preserving through thousands of years an unbroken identitywith the noblest and greatest nations of the ancient world by familiarizing us,through the medium of grammar and history, with the works of their minds and thecourse of their destinies, as if there were no gulf that divided them from us’. 34Here, we begin to get an understanding of how the study of Roman legal historyand history, even on a social scientific basis, was, nevertheless, an expression ofemerging liberal nationalism and constitutionalism in nineteenth-century Germany.The ‘critical treatment of Roman history, the discovery of the forms of the constitutionwhich had till then been misunderstood, was a fruit that time had been maturing’,until ‘a multitude of fortunate circumstances combined to foster its growth’. 35 In1810, when the University of Berlin opened, it was a ‘time full of hope’, and Niebuhrwrote that ‘to have enjoyed this, and to have lived in 1813—this is enough to makea man’s life, notwithstanding much sad experience, a happy one’. 36 The ‘revival ofRoman history was in accord with the spirit of the age’, and ‘nay our age may discernitself to be immediately called by Providence to this inquiry, inasmuch as, within theeleven years since it commenced, three new and rich sources have been opened tous by the publication of Lydus, Gaius, and Cicero’s Republic; whereas centuries hadpreviously elapsed without adding to our means of knowledge’. 37 Niebuhr closedthe Preface by thanking Savigny and others for their support and by making theprimacy of contemporary politics explicitly clear: ‘Of the principles on which the