Making of a German Constitution : a Slow Revolution

108 • The Making of a German Constitutionidentified three types of personality: full personality or liberty (vollkommene Freiheit),limited personality or liberty (unvollkommen Freie), and incapacity (Unfreie). 64It is at this point that the exclusive basis of the state that German liberals wishedto bring into existence, through constitutional transformation, became clear. Therewere five qualifications for full liberty: ownership of real property (Eigenthum anGrundstücken), full legal and business capacity (Fähigkeit zu allen Rechtsgeschäftenund Handlungen), right of the wergild (Recht des Wehrgeldes), right to private feuds(Fehderecht) and right to bear arms (Waffenrecht). 65 Only members of the communitywho were in full possession of these rights enjoyed full liberty and participation inthe state. This was confirmed in the last pages of his treatise, when he returned to theimportance of the municipal constitutions. ‘Political liberty (Bürgerrecht)’ hinged, inall German municipal constitutions, on the possession of private property and concurrentfull management and usufruct rights relative to that property. 66In addition, Eichhorn’s system offers an indication of the continuity of politicalthought between the early theoretical period of German liberalism and the practice ofconstitutional transformation after 1850. It mirrors the structure of the BGB that wasenacted in 1896. Book 1, as I have mentioned, covered the law of persons. Book 2,Recht der Forderung, systematized juristic personality. In Book 3, property law(Rechte an Sachen) was delineated. In Book 4, Eichhorn turned his attention to familylaw. Here, he delineated not only the German basis of marital property relations,but the necessity of sex guardianship over women. Inheritance law was taken upin Book 5. Finally, the broad constitutional and political significance of Eichhorn’ssystem of private law is evident in Book 6, Recht der Gemeinheiten und Gewerbe.Here, he returned to the importance of municipal constitutions, but added an analysisof village constitutions (Verfassung der Dorfgemeinden). In addition to this, a liberalpolitical focus on developing a constitution that would meet the needs of capital wasimportant, and, indeed, Eichhorn closed his Einleitung in das deutsche Privatrechtwith four chapters on business associations: guild law, business law, shipping rightsand the regulation of trade. 67The structure of Eichhorn’s system is important also because scholars have suggestedthat the structure of the BGB was derived from Roman law. As I arguehere, and as Eichhorn’s system shows, German law underwent a scientific processof technical Romanization, but the norms were based on a rationalization ofGerman customary law. Eichhorn’s system did not stand alone. There were manyothers produced in these years. In the third volume of the ZGR, Mittermaier’s‘Beiträge zur Geschichte der ehelichen Gütergemeinschaft, des Erbrechts und derFreiheit zu testiren im Mittelalter’ (1815) appeared, and it was here that he beganto identify deutsches Mundium as the proper basis of marital property relations. 68He wrote his Der gemeine deutsche bürgerliche Prozeß in Vergleichung mit dempreußischen und französischen Civilverfahren und mit den neuesten Fortschrittender Prozeßgesetzgebung on common German civil procedure in 1820. He wrotehis Lehrbuch des deutschen Privatrechts in 1821, but it was in his Grundsätze des