Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 111publication of Puchta’s Das Gewohnheitsrecht (1828) was said to have created asplit within the German legal world, in reality, he expanded Savigny’s argument ongradualism into a three-stage theory of national legal development. The first stagePuchta described as a period of innocence and the second as a period of particularismor variety. It was in the final stage that professionally trained legal scholarswould carry legal particularism to the ‘higher unity’ of ‘science’, a stage that he feltcharacterized his contemporary age. 73 The problem, however, emerged when Puchtasuggested that science itself was a source of law. ‘Science finds a productive use inthe recognition of customary law,’ he wrote, ‘and here science itself enters the list ofsources of law.’ 74 While Putcha still viewed the Volksgeist as the ultimate source of thelaws, von Mehren and Gordley suggest that doctrinal thinking dominated his work tosuch a degree that it had no practical significance. 75 Nevertheless, the publication ofDas Gewohnheitsrecht underscored how important customary law constitutionalismhad become in German sociopolitical thought.As Savigny’s most celebrated student from his Marburg years, it was JacobGrimm, more than anyone else, who championed the development of a popular discourseon the political element and the vaterländisches Recht. Savigny and Jacobremained close friends throughout their lives. When Savigny traveled with his newwife to Paris in 1804, the two were buggy-jacked by thugs just outside the city,and this was an incident that did little to raise Savigny’s opinions of the Frenchexperiment. The thugs stole and made waste of, amongst other things, his considerableresearch notes. It was in the aftermath of this buggy-jacking that he wrote toJacob, requesting that he come and assist him in Paris. In fact, both Grimm brotherscorresponded frequently with him, and it was Savigny who introduced them intoGerman romantic circles. The brothers sent him the first copies of their Kinder undHausmärchen (1812) for his review and for him to test read with young Bettina. Inhis Selbstbiographie, Jacob faced a loss of words for the man who had ‘such a decisiveinfluence on my whole life and education’. 76 Not long after his dismissal fromGöttingen, in an 1838 letter, he wrote to his ‘Lieber Savigny, you are the oldest andtruest friend of my life.’ 77 The relationship, like the close ties between Niebuhr andSavigny, also underscores Savigny’s tremendous influence in the German intellectualworld, generally. Both William and Jacob corresponded frequently with him asthey were preparing the folk tales, and, as I mentioned earlier, it was Savigny whosecured posts for both brothers, at the University of Berlin, after the notorious GöttingenSeven dismissal.Jacob is better known for his work with William on the Hausmärchen, their otherfolklore compilations, and, of course, Das Deutsche Wörterbuch, which they beganto work on in 1838. However, he was also a lawyer and one of the leading figuresin the German legal world. In the same years that the major works of Savigny,Eichhorn and Puchta appeared, Jacob Grimm published his first long work onGerman legal history, Deutsche Rechtsalterthümer (1828). He was the founder ofGerman legal antiquarianism, and its influence cannot be emphasized enough. In