Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 113Nuova, which had reacted against Cartesian metaphysics and demanded greater considerationof spiritual and intangible elements. The Tale of Otr, a folk tale from timeout of mind, was a testament to ancient custom and was used to argue the right tomoney damages for loss of private property. The moral of the story was that the ancientGermans possessed private property rights and that these rights were part of anentailed estate, a prescriptive and inborn constitution. In his ‘Von der Poesie im Recht’(1816), published in the second edition of the ZGR, Jacob invested German poetrywith the same legal authority. Here, he emphasized the spiritual and symbolic originsof law. He suggested that folk poetry and that which could be derived from ‘the mouthand customs of our common man’ was a living witness to an ancient constitution. 81Jacob’s legal scholarship, and arguably the Hausmärchen and Wörterbuch, involvednothing less than the formation of a kind of völkische lex regia, and the underlyingclaim was that although it may not have existed in theory, it had thrived inordinary practice. In point of fact, disclosing the political element and discoveringthe data for a system was a rather dubious project. However much legal historiansmay have believed themselves to be engaged in a scientific endeavor, the appeal tocustom, as a source of data, disclosed that the political element was more a productof liberal political imagination than objective science. Time and again the historicaldata seemed, peculiarly, to bear witness to the sociopolitical system that liberalswished to bring into existence. Nowhere is this questionable aspect of German jurisprudencemore apparent than in Jacob’s major work, Rechtsalterthümer. He ‘heldhis Deutsche Rechtsalterthümer in higher regard than any of his other works’ andconsidered it to be ‘a draft foundation’ for future legislation, as Andreas Heusler andRudolf Hübner wrote a generation later. 82While Eichhorn and Mittermaier had relied on written legal sources, Jacob expandedthe pool of customary law sources to include mythology, folklore, poetryand the like. ‘On every corner’, Jacob wrote in Rechtsalterthümer, ‘I find sproutsfor growth.’ 83 Celebrating Möser’s Patriotische Phantasien, where he had called forthe organic development of the state and its institutions, Jacob argued for the revivalof ‘deutsche Rechtsantiquare’. 84 The progress of legal antiquarianism, however, ledGerman jurisprudence down a somewhat precarious path. Legal antiquarians vestedthe rights of the people in remoter and still remoter periods in the German past, whileat the same time asserting that the evidence of the continuous usage and expressionof ancient liberties could be found in the living and inarticulate Volk cultureof their own time. The data collected for the vaterländiches Recht was purportedto have deep roots in a free epoch of German antiquity, an era well before the riseof absolutist monarchs. The vaterländisches Recht, accordingly, was prescriptive,beyond the power of personal rulers to abolish or annul, and, therefore was availableto be reclaimed by the German people at any time. Jacob had loosened the bands onlegal history and freed liberals from written legal sources. As Wieacker once wrote,following the publication of Rechtsalterthümer, Germanists dedicated themselves torediscovering ‘the law of the Germany of yore’. 85