Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 115Europe: ‘It is not vaterländisch to us, was not produced and grown on our groundand stands, in its essence, in fundamental conflict to our way of thinking, and, for thatvery reason, can never satisfy us.’ 93 Rather, as he stated poignantly, the legal precedentsspoken ‘from the mouth of the country people (landvolks)’ formed a ‘highlypeculiar phenomenon in our ancient constitution, that is not found amongst any otherpeople and is a glorious witness to the free and noble nature of our native laws’. 94The north German constitutional politics of the Grimm brothers’ folklore researchand work on the Deutsches Wörterbuch was evident in Rechtsalterthümer. In thelengthy, 300-page Einleitung, Jacob developed what was essentially legal philology.The symbolism of common folk language was treated as an organic storehouse ofthe ancient constitution. This brand of legal philology was a central feature of Rechtsalterthümer,and it marked the beginning of a kind of hyper-politicization of everyordinary element of German culture. Arm und Hals ‘appeared as the symbols of subjection’,he argued, and ‘to lay ones throat or neck under an arm or to have an armlaid over ones throat’, implied that person was unfree and owned by another person. 95He also offered a lengthy discussion on the legal symbolism of Hand und Finger,reasoning that ‘considered symbolically, the hand was like a scepter in the importanceof power’. 96 Haar und Bart ‘were the symbols and dress of the emancipated, freeclass’. 97 Der Hut was a symbol of freedom and ‘for the delegation of goods and fee orfeudal tenure’. 98 Der Hammer, originally a weapon, became a symbol of court authority:‘A judge slammed down his hammer after the legal transaction of goods.’ 99It cannot be emphasized enough that liberal political goals were at the heart ofburgeoning research on the history of German private law and what I have calledPrivatrechts-Staatslehre. The ultimate right that liberals claimed was bürgerlichesovereignty, at the heart of which was the right to make the laws. Conferring titleof prescription on the people’s right to sovereignty was critical, and the researchof legal antiquarians was designed to prove the pedigree of German liberties. Thisencouraged a belief in an ancient German constitution, which was nourished by themyth of original freedom. At the same time, this led to preoccupation with the originalsociopolitical constitution of all German relationships, and, increasingly, thispurported original character became the justification for constitutional form. On theone hand, there was original liberty, but, on the other, as was already evident inJacob’s philological treatment, there were also a host of original unfreedoms.By the 1820s, political writers were preoccupied with the law and increasinglyidentified with the Gemeinwesen (commonwealth) as the normative form of a freestate. According to Conversations-Lexikon (1820), ‘republic in the sense of ancienttimes’ referred to a ‘commonwealth of the citizens.’ 100 In his frequently cited DieStaatswissenschaft im Lichte unserer Zeit (1827), Karl Pölitz wrote: ‘The basic characterof a republican form of government, in contrast to a monarchy, is that the ruler(Regent) in a republic is only the highest civil servant (Beamte) of the State.’ 101 Writtenfor scholarly and popular audiences, Johann von Aretin’s Staatsrecht der constitutionellenMonarchie: Ein Handbuch für Geschäftsmänner, studierende Jünglinge,