Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 107deutsches Recht und deutsche Rechtswissenschaft. In addition to these German-widejournals, this trend was preceded by the founding of a number of state-level legal periodicalsin Saxony, Prussia, Mecklenburg, Bavaria, and elsewhere. These may havebeen the result of modern legal reforms in these states. Perhaps the longest circulatingstate journal was the Archiv für Zivil- und Kriminalrecht der Königlich-PreussischenRheinprovinzen, which continued publication from 1820 to 1906.The coordinated effort to develop what Savigny had referred to as the data for asystem, in this case the data for a legal system based on German sociopolitical values,was evident in the first edition of the ZGR. Here, Eichhorn offered two lengthytreatises. His ‘Ueber das geschichtliche Studium des deutschen Rechts’ (1815) emphasizedthe need for ‘scientific instruction’ in and recovery of German private law(deutsches Privatrecht), which continued to exist as ‘unwritten particular law’ andwhose existence had been threatened by the French occupation. 57 This project, hebelieved, was of vital importance to the German people and should be the highestpriority of ‘scientific interest’. 58 He went on to identify for legal historians the primarysources where German private law could be located. In a second article, ‘Ueber denUrsprung der städtischen Verfassung in Deutschland’ (1815), Eichhorn focused onmunicipal legal arrangements as a vital source of German constitutional history. The‘ius civitatus, Weichbildrecht, Stadtrecht’ had developed in Germany in the twelfthcentury and marked the existence of the first civic privileges (Gerechtsamen). 59 Theconstitutions that predated this period had resulted from charters of liberty grantedto the old Roman towns. 60 Eichhorn, then, went on to offer a detailed philologicalanalysis of the development of urban constitutionalism, which was organized aroundjuridical precepts.Eichhorn’s Einleitung in das deutsche Privatrecht mit Einschluß des Lehenrechts,which was published in 1823, was a reflection of the changing political climate.Whereas he focused on constitutional law prior to 1819, he had transferred his politicalwriting to scholarship on private law by 1823. Like so many other writers inthe period, Eichhorn claimed that his interest was only in law and not politics, but,in reality, this claim was only a disclaimer to avert the attention of the censors. Einleitungin das deutsche Privatrecht was part and parcel of liberal constitutionalismand political through and through. In the first section, he discussed the importantsources of German private law, identifying customary laws (Gewohnheitsrecht) inparticular. 61 Most importantly, however, in the second section, Eichhorn developed adetailed system of German private laws (System des deutschen Privatrechts), whichtook up the remaining 800 pages of the book. 62 It was in the various systematictreatments of the data, produced in the first half of the nineteenth century, that legalhistorians, essentially, offered images of a German Gemeinwesen. It is also for thisreason that the whole of the study of the history of German private law must be seenas Privatrechts-Staatslehre, as I suggested in the Introduction.In Book 1, the law of Persons (Personenrecht), Eichhorn underscored the privatelaw basis of public liberties (privatrechtliche Bedeutung der Freiheit). 63 Here, he