Making of a German Constitution : a Slow Revolution

114 • The Making of a German ConstitutionJacob praised Eichhorn for his contribution to German legal history and for inauguratinga new era in the study of German legal sources. He explained that legal antiquariansand traditional Germanists, like Eichhorn, were in agreement relative to therecovery of German legal sources as a critical phase in the development of a Germansystem. 86 ‘In antiquity’, however, Grimm argued, ‘everything was expressed spiritually(sinnlich)’, whereas ‘in modern times, everything had gathered itself togetherintellectually (geistig)’. 87 The key distinction between traditional Germanists andthe new ‘school of German legal antiquity (schule deutscher rechtsantiquare)’ wasthat antiquarian research would also focus on the ‘materials of the spiritual element(sinnliche element) in German legal history’. 88 ‘In particular’, Jacob argued, ‘thelegal precedents of the lay judges (Weisthümer) on German rights, in their high wisdomand content’ were, in fact, ‘totally comparable with the common folk languageand folksongs’ of the people. 89 ‘In addition’, he added, this school would engage,not only jurists, but ‘antiquarians’ working on ‘language, poetry and the history ofour ancestors’, generally. 90 ‘The experiment of a primary work in this sense’, heexplained, is to offer ‘more oil than salt’, and his Rechtsalterthümer offered ‘a workfull of materials’. 91A critical dimension of the nineteenth-century project of recovering the vaterländischesRecht involved not only the discovery of the data for a system, but thethinking of that data into a system, as we have seen. While historians have tended tofocus exclusively on Roman law, in reality, there were many systematic treatmentsof German legal sources in the period, all of which, remarkably, seemed to confirmthe efficacy of liberal political ideals. This was evident in Mittermaier’s work,Eichhorn’s System des deutschen Privatrechts and, to a lesser degree, in Savigny’sSystem des heutigen römischen Rechts (1840). Jacob’s Rechtsalterthümer was noexception to this direction in German jurisprudence. It also offered a similar imageof a German Gemeinwesen, but one confirmed by a systematization of the sinnlicheelement of German legal history. It must be emphasized, however, that, while it drewdata from this element, it nevertheless sustained the political elements found in Mittermaierand Eichhorn’s systems and elsewhere in German legal thought. What madeit unique was its attempt to appeal to popular culture and popular language style. Inthis way, Rechtsalterthümer laid the critical foundation for building a popular constitutionalismaccessible to ordinary Germans and also set the stage for the broadermobilization of intellectuals working in other areas of German cultural expression.As I mentioned earlier, the rise of the historical school marked the growth of aspecifically north German customary law constitutionalism, and nowhere was thisstated more clearly than in Rechtsalterthümer. It was marked by the solemnizationof the Sachsenspiegel, which German liberals brandished as the source of ancientliberties. Grimm’s usage of the term ‘Recht’, rather than ‘Gesetz’, pointed towardthe primacy of politics and, as he stated, the term ‘deutsch’ specifically referred to‘northern and Anglo-Saxon sources’. 92 Jacob also expressed the widespread politicalobjections against the ius commune as a source of legal rules in German-speaking