Making of a German Constitution : a Slow Revolution

Images of the Gemeinwesen • 119could ‘swing a spear’. 133 Only ‘the Hausherr was free and unrestricted’ and ‘the wife,his sisters and children fell under his guardianship (Schutz or Mund)’. 134 He citedTacitus’ Germania when he described the position of the Hausherr as ‘like a king onthe throne, the judge on the highest chair, so is the Hausvater in his pride of place(Ehrensitz)’. 135 The organization of the family, thus, was seen as a vital cornerstoneof civil political arrangements, because as Eichhorn pointed out, marital property relationshoused significant ramifications for legal personality. Savigny also identifiedcivic rights with marital property relations. 136Power relations in the family were a metaphor for power relations in the broadersociety. On the one hand, male liberties seemed to extend from their rights in thehome. The rights of men, in times of peace, were contingent on the fulfillment offamily obligations and originated in their role as ‘husband and father of a wife andchildren, that were under his authority’. 137 On the other, the denial of rights to womenstemmed from their subjugation in the home. This division of power started from themoment of birth and was apparent in the way that Jacob contrasted the meaning ofDer Speer and Die Spindel. ‘At the birth of a Mädchen’, he wrote, ‘a spindle waslaid at the door.’ 138 ‘The spindle’, accordingly, was ‘the symbol of the woman andhousewife’. 139 In the ancient legal language, however, ‘the spear’ was the symbol ofmanhood and the male line. It could be used to legitimate children, whereas, as hespecifically mentioned, the spindle could not.In the primary instance, the feminine emerged as the living symbol of incapacity.Married women ‘could no longer let their hair fly freely, but had to bind it in a knot,tightly’. 140 Women, Jacob wrote, were assigned ‘other symbols and punishments’. 141‘In many ways women were worth less than men,’ he added. 142 ‘A newborn child wasmore respected if it was a boy than if it was a girl.’ 143 ‘Girls,’ he did not fail to emphasize,‘were often given away into slavery.’ 144 Women, in Jacob’s system, were notprivate property right holders, but were themselves private property. Similar legalmeaning was defined for Schuh (shoe), ring and Schlüßel (key). Fathers could adoptor legitimate sons by placing a shoe on their right foot. Where women were concerned,the shoe served a similar purpose: ‘The groom brings it (shoe) to the bride; assoon as it has been placed on the foot she becomes considered as under his power.’ 145This certainly gives new meaning to the legal symbolism that was attached to theglass slipper in the fairy tale of Cinderella. Similar legal symbolism was attachedto the ring: ‘Ist der finger beringt, so ist die jungfer (virgin) bedingt.’ 146 AlthoughSchlüßel (key) symbolized ‘the power of the housewife’, women in reality wereonly the Schlüßelträgerin (carrier of the keys) of their husbands. 147 Der Gürtel, the‘innermost clothing’, was something given by a freeman to someone who was a subjectto his authority. ‘Women who were cut out from inheriting, from their deceasedhusbands’, Jacob explained, ‘either had to remove their girdle during the burial at thegrave or appear before a judge and witnesses to remove their girdle.’ 148This imagining of the place of women in the home was the direct corollary to thebasis of their exclusion from full citizenship and participation. An indication of this